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BANCROFT  LIBRARY 

O 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


WALTER  WADSWORTH   BRADLEY 

1878-1950 

Walter  W.  Bradley  was  born  in  San  Jose  and 
received  the  degrees  of  B.S.  and  E.M.  from 
the  University  of  California.  From  1912  to 
1946  he  was  associated  with  the  California 
Division  of  Mines,  serving  as  State  Mineral- 
ogist for  the  last  eighteen  years  of  that  period. 
His  published  works  relate  to  mining,  proc- 
essing, and  geology.  This  book  is  from  his 
private  collection,  presented  to  the  Bancroft 
Library  by  Mrs.  Alice  Roberts  Bradley. 


THE   BLAIR-MURDOCK   COMPAN 

SAN   FRANCISCO,   CAL. 


A    MANUAL 


OF 


AMERICAN    MINING   LAW 

BY 

A.   H.  RICKETTS 

OF    THE 
SAN    FRANCISCO    BAR 


SAN    FRANCISCO 

SCIENTIFIC    BOOK    PUBLISHING    CO. 

MCMXI 


COPYRIGHT       1911 
BY    A.    H.    RICKETTS 

PUBLISHED      OCTOBER,      1911 


73162 

(BANCROFT 

UBRARY 


TO    MY    FRIEND 

JOHN    HAYS     HAMMOND 


PREFACE. 

My  schoolmate  and  friend,  Mr.  A.  H.  Ricketts, 
considers  it  proper  that  the  eldest  son  of  the  author 
of  the  first  work  on  American  mining  law  should 
write  the  preface  to  the  latest  book  on  that  subject. 
But  for  the  sentiment  involved,  I  should  hesitate,  as 
a  mere  layman,  to  identify  myself  even  in  this  small 
way,  with  a  work  of  the  technical  character  of  this 
book.  My  father,  the  late  Gregory  Yale,  as  far  back 
as  1867  wrote  his  book  on  "Mining  Claims  and  Water 
Rights/ '  before  which  there  was  no  original  contri- 
bution on  mining  law  in  American  legal  literature. 
Based  largely  on  the  now  obsolete  mining  law  of 
Congress  of  July,  1866,  that  work  is  now  mainly  of 
interest  for  the  historical  features  connected  with 
the  subject,  and  has  been  long  out  of  print. 

This  latest  work  on  American  mining  law,  by  Mr. 
Ricketts,  brings 'everything  on  the  subject  up  to  date, 
as  to  State  and  Federal  legislation,  the  decisions  of 
the  courts,  and  the  rulings  of  the  Departments.  On 
reading  the  advance  sheets  one  is  at  once  struck  by' 
the  conciseness  in  which  the  facts  are  presented. 
There  has  been  no  attempt  whatever  toward  elabora- 
tion or  argument.  The  author  gives  wrhat  he  con- 
siders the  proper  construction  of  the  law  and  in  .each 
case  cites  the  authorities.  There  is  therefore  nothing 
to  confuse  the  layman,  while  at  the  same  time  the  book 
is  of  great  value  for  reference  to  those  of  the  legal 
profession.  Under  each  general  heading  are  num- 


bered  and  titled  paragraphs,  exceedingly  brief  but 
expressive,  and  containing  reference  to  the  footnote 
showing  the  authority  and  its  source.  No  arrange- 
ment could  well  be  handier  for  reference  to  the  pros- 
pector, miner,  mine  manager  or  lawyer. 

It  is  to  be  noted  that  both  the  first  book  on  Amer- 
ican mining  law  and  the  latest  one  on  the  same  subject 
are  by  Californian  authors,  practicing  attorneys  in 
the  city  of  San  Francisco,  where  both  books  were 
published. 

CHARLES  GREGORY  YALE. 

SAN  FRANCISCO,  October  2,  1911. 


TABLE  OF  CONTENTS 


CHAPTER   I. 
MINING   LAW   IN   THE   UNITED  STATES. 

£  1.  Local  rules,  regulations  and  customs — cause  of  estab- 
lishment— common  law  of  mining — statutory  limi- 
tations— Californian  provision — absence  of  rules 
and  customs — when  void — presumptions — construc- 
tion— evidence — effect  of  non-observance. 

j  2.  Statutory  law  —  lack  of  uniformity  —  salutary  pro- 
visions. 

j  3.  Alaska — additional  provisions — explorations  on  Beh- 
ring  Sea  —  dredging  —  beach  claims  —  roadway  — 
aliens — adverse  claims — adverse  suits  —  adverse 
possession. 

j  4.     Hawaii — land  department. 

5  5.  Philippine  Islands — dissimilar  provisions — tunnel  sites 
— land  department. 

5  6.     Porto  Rico. 

CHAPTER   II. 
COURTS. 

j  10.  In  general — jurisdiction — state  courts — federal  courts 

— remand — land  department — stay. 

\  11.  Federal  question — pleadings. 

1 12.  Union  of  remedies— joinder — exception. 

\  13.  Dismissal  of  cause. 

\  14.  Appeal— federal  courts. 

i  15.  Appeal — state  courts — writ  of  error. 

i  16.  Conflicting  decisions. 

\  17.  Recent  legislation. 

CHAPTER    III. 
ACTIONS. 

i  19.  Possessory  actions  —  possessory  right  —  pleading  — 
citizenship — judgment — receivers. 

!  20.  Adverse  suit  —  jurisdiction — pleading — trial — dismis- 
sal— non-suit — judgment — final  judgment. 


8  TABLE   OF   CONTENTS. 

CHAPTER   IV. 
DISPOSAL  OF  THE  PUBLIC  LANDS. 

§  23.  Land  department — powers — judgment  unassailable — 
judgment  not  conclusive — Board  of  Equitable  Ad- 
judication— character  of  entries  to  be  submitted — 
procedure — appeal — termination  of  jurisdiction. 

§  24.  Contests — grounds  for  action — procedure — notice  re- 
quired— purpose  of  notice — effect  of  notice — default 
—  notice  after  appearance — compromise — specific 
performance. 

§  25.     Hearings — character  of  land — presumption. 

§  26.  Testimony — rules — evidence — insufficient  evidence — 
burden  of  proof. 

§  27.  Result  of  hearing — segregation  survey — judgment  not 
equivalent  to  patent — subsequent  legal  proceedings. 

§  28.  State  lands — when  title  passes — when  closed  to  the 
prospector — rights  on  state  patented  lands — land 
department — register  of  state  land  office — contests 
— pleading — protestant  —  effect  of  judgment — pay- 
ment for  land — statute  of  limitations — recent  Cali- 
fornian  legislation — school  lands  withdrawn  from 
sale. 

§  28a.  Conservation. 

§  29.  Railroad  lands — classification  of  land — inconclusive- 
ness  of  classification  —  subsequent  discovery  of 
mineral — rejection  of  application  for  patent — land 
department. 

CHAPTER  V. 
SURVEYS. 

§  35.  Public  land  surveys — province  of  land  department 
— questions  of  fact — duty  of  surveyor — division  and 
numbering  of  the  public  lands — meander  lines — 
high-water  mark — recent  Californian  legislation. 

§  36.  Official  surveys — lode  claims — placer  claims — con- 
necting line — reference  to  connecting  line— maps — 
map  must  be  supported  by  evidence — testimony  of 
surveyor — fabricated  survey — map  not  proof  of 
lode. 

§  37.  Segregation  survey  —  when  ordered  —  township 
records. 

§  38.  Adverse  claim  survey  —  what  plat  of  must  show  — 
when  survey  not  necessary — not  made  by  surveyor- 
general. 

5  39.    Appeal. 

§40.  Surveys  under  state  laws — surface  survey — record — 
evidence — underground  survey— service  of  order. 


TABLE   OF  CONTENTS.  9 

CHAPTER   VI. 
LAND    DISTRICTS. 

§  41.  Laud  district — additional  land  districts  and  changes 
therein. 

§  42.     Mineral  district. 

§  43.  Mining  district — extent — changing  boundaries — per- 
sons —  corporation  —  regularity  of  proceedings  — 
officers  of  district — duties  of  recorder. 

CHAPTER    VII. 
MINERAL    LANDS. 

§  45.  Land  subject  to  location — land  valuable  for  its  min- 
eral deposits  —  classification  of  land  —  who  may 
question  character  of  land. 

§  46.  Land  not  subject  to  location  —  Indian  lands — allot- 
ments— patents. 

§  47.     Mineral  deposits. 

CHAPTER   VIII. 
VEIN,   LODE  AND  LEDGE. 

§  50.  In  general — interchangeable  terms — miners'  use  of 
terms — common  use — the  miner's  vein  or  lode — 
miners'  distinction  between  vein  and  lode — vein 
within  lode — synonymous  terms — statutory  mean- 
ing— judicial  definitions — general  rule — no  conflict 
—  various  definitions  —  no  arbitrary  definition  — 
approved  definition  —  gravel  deposits  —  character- 
istics of  a  vein  or  lode — elements  of  a  vein  or 
lode — fissure  veins—broad  lodes — walls  of  broad 
lode — indivisibility  of  -a  broad  lode — separate  veins 
within  zone — blind  vein — blanket  vein — secondary 
or  incidental  vein— extra-lateral  right  to  secondary 
vein — single  vein — intersecting  veins — apex  of  in- 
tersecting veins — cross  veins — space  of  intersec- 
tion— contact  vein — known  vein — ledge  matter — in 
place — rock  in  place — other  rock  in  place — vein  or 
lode  in  place — vein  or  lode  not  in  place — country 
rock — horse —  dykes  —  outcroppings  —  identity  of 
vein  and  outcrop — outcroppings  not  essential — top 
or  apex — highest  point — legal  top  or  apex — discov- 
ery of  top  or  apex — location  must  include  top  or 
apex — course  or  strike — determining  course  or 


10  TABLE   OF  CONTENTS. 

strike — practical  rule — following  course  or  strike — 
dip  or  downward  course — measuring  dip — easement 
or  servitude — following  the  dip — walls  of  vein  or 
lode — boundaries  of  vein  or  lode — indications — im- 
pregnations. 

CHAPTER  IX. 

GRUB-STAKE     CONTRACTS— MINING     PARTNERSHIPS 
CO-TENANTS. 

§  57.  Grub-stake — in  general — nature  of  contract — trustees 
— essential  requisites — consideration — termination 
— accrued  rights — duty  of  outfitter — duty  of  pros- 
pector— what  is  not  a  grub-stake. 

§  58.  Mining  partnerships — peculiar  rules  applicable — es- 
sential difference  between  mining  and  general 
partnerships  —  how  created  —  general  partners  — 
trustees — control —  debts — liens  —  accounting — dis- 
solution— sale. 

§  59.  Co-tenants — not  mining  partners — trustees — termina- 
tion of  trust — corporation  not  co-tenant — inchoate 
rights — divestiture  of  title — exclusion  from  patent 
— when  rights  barred — actions — questioning  title — 
working  the  claim — accounting — contribution — lia- 
bility for  loss  and  debts — adverse  possession. 

CHAPTER  X. 
MINING    LEASES   AND   LICENSES. 

§  61.  Mining  leases — in  general — covenants — provision  as 
to  stoping — royalty. 

§  62.  Licenses  in  general — intent  controls — test — when  re- 
vocable— when  irrevocable — injunction. 

( 

CHAPTER  XL 
OPTIONS— DEEDS— EXAMINATION    OF    TITLE. 

§  66.  Options — distinction  between  option  and  contract — 
consideration  —  sufficient  consideration  —  duty  of 
owner — damages — default. 

§  67.  Deeds — what  passes  by  deed — unnecessary  recital — 
creation  of  independent  estates — effect  of  quit- 
claim deed — title  of  corporation — title  of  associa- 
tion—  attack  by  grantor  —  agreement  for  deed  — 
description — statute  of  limitations — taxation. 


TABLE  OF  CONTENTS.  11 

Examination  of  title — unappropriated  land — charac- 
ter of  location  —  form  of  location  —  cross  vein  — 
known  vein  —  discovery  —  boundaries  —  annual  ex- 
penditure —  receiver's  receipt  —  conclusiveness  of 
patent — inconclusiveness  of  patent. 

CHAPTER    XII. 
POSSESSION— ABANDONMENT— FORFEITURE. 

§  71.  Possession — actual  possession — actual  possession  not 
required — actual  possession  without  boundaries — 
constructive  possession — boundaries  without  dis- 
covery— presumption  as  to  ownership — evidence  of 
ownership — adverse  possession — general  principle 
—  continuity  of  possession  —  insufficient  adverse 
possession — effect  of  patent. 

§  72.  Abandonment  —  intent  controls  —  how  effected  —  co- 
tenant — not  abandonment  —  deed  —  proof  —  test  — 
pleading. 

§  73.  Forfeiture — proof — burden  of  proof — reasonable  doubt 
— pleading — absence  of  right. 

CHAPTER   XIII. 
REMEDIES. 

§  76.  Condemnation  proceedings — constitutional  provision 
— limitation  of  power — public  use. 

§  76a.  Recent  Californian  legislation. 

§  77.     Easements — vested  rights — right  of  way — damages. 

§  78.  Laches — unlike  limitations — equitable  defense — delay 
— measure  of  diligence — pleading  laches — plaintiff's 
allegations. 

Liens — not  impaired  by  patent — loss  of  lien — me- 
chanic's liens — purpose — contract  essential — protec- 
tion of  owner — statutory  requirement — indemnifica- 
tion— subordinate  to  mortgage. 

Master  and  servant — fellow  servants — assumption  of 
risk  —  legislative  safeguards  —  limiting  hours  of 
labor — constitutionality  of  act. 

§  80a.  Recent  Californian  legislation. 

§81.  Partition  —  agreed  partition  —  arbitration  —  mining 
right. 

§  82.  Patent — bona  fide  purchaser — burden  of  proof — fraud- 
ulent patentee — not  attack  upon  patent — status  of 
trustor — fraud — application  to  sue — false  testimony 
insufficient. 


12  TABLE  OF  CONTENTS. 

§  83.  Rescission — condition  precedent — application  of  rule 
— grounds  for  rescission  —  salting  —  unintentional 
salting — remedies — insufficient  grounds  for  rescis- 
sion— marketable  title. 

§  84.  Statute  of  limitations — establishes  right  to  patent — 
controlling  factor — Californian  provisions. 

§  85.  Trespass — ignorance  of  boundary — test  of  trespass — 
injunctional  proceedings  —  denial  of  injunction  — 
right  of  inspection — grounds  for  order — substance 
of  order  —  damages  —  good  faith  of  trespasser  — 
pleading — model. 


CHAPTER   XIV. 
DEFINITIONS. 

(For  other  definitions,  see  appropriate  titles.) 

§  87.  Assays — assay  value — value  of  assay — car  and  mill 
samples. 

§    88.     Blanket  sluices — concentrates. 

§  89.  Claim — application  of  term — perfected  claim — cotf- 
tiguous  claims. 

§    90.     Conspicuous  place — penalty. 

§    91.     Corporation — location  rights. 

§    92.     Desert  lands. 

§  93.  Entry — preferential  right — certificate  of  entry — issu- 
ance— effect  of  issuance — cancellation — repayment. 

§    94.     Exemptions — Californian  provision. 

§  95.  Fixtures  —  examples  —  Californian  provision — char- 
acter of  title  immaterial. 

§  96.  Location — location  and  mining  claim — consolidated 
locations — technical  locations — illustrations — loca- 
tion as  property — incidents  of  ownership — not  com- 
munity property — taxation. 

§    97.     Markings. 

§  98.  Mine — existence  determined — synonyms — descriptive 
name — want  of  identity. 

§  99.  Mineral — mineral  substances — within  purview  of 
mining  laws — float — ore — ore  in  sight — ore  per- 
sonal property — placers — placer  workings — zone. 

§  100.     Miner's  inch — Californian  provision. 

§  101.  Mining — prospecting  and  mining — process  of  mining 
— process  of  milling — business  of  mining — instru- 
mentalities— superintendent — shift  boss — miner. 


TABLE  OF  CONTENTS.  13 

§  102.  Mining  claim — statutory  meaning — distinction  be- 
tween mining  claim  and  location — distinction  be- 
tween mining  claim  and  mining  ground — navigable 
river  —  Mexican  grant  —  agricultural  patent — oil 
claim — ditch — unworked  placer. 

§  103.  Mining  right — species  of  trade  —  legal  relations — 
mining  title. 

§  104.  Public  land — distinction  between  public  land  and 
public  use — unoccupied  and  unappropriated  land — 
vacant  land — occupancy  and  improvements — public 
mineral  land — homesteads — possession. 

§  105.     Salt  lick. 

§  106.  Scrip — written  authorizations-selection — sale — guar- 
antee. 

§  107.     Tunnel  right — implied  rights. 

CHAPTER   XV. 
COAL    LANDS. 

§  108.  In  general  —  entry  —  preferential  right  —  consolida- 
tion. 

CHAPTER   XVI. 

LODE    CLAIMS. 

§  110.  In  general — top  or  apex — surface  rights — subsurface 
rights — presumption — departure  from  surface  lines. 

§  111.  Limitation  of  subsurface  rights — form  of  location — 
exceptions  —  priority  of  location  —  priority  imma- 
terial. 

§  112.  Dip  right — basis  of  right — identity  of  vein — want  of 
identity. 

§  113.     Unlawful  intrusion — exception. 

CHAPTER    XVII. 
MILL-SITES. 

§  116.  In  general — limitations — character  of  land — mining 
and  milling  purposes — who  may  locate — location — 
annual  expenditure — patent. 

CHAPTER   XVIII. 
PLACER    CLAIMS. 

§  119.  In  general  —  location  rights  —  known  vein  —  subse- 
quent discovery — conflicting  locations — area  of 
placer  locations — discovery,  marking  and  annual 
expenditure — patent — joint  entry — effect  of  ex- 
cluding known  vein — limitation. 


14  TABLE  OF  CONTENTS. 

§  120.  Petroleum  oil  claims — rights  preserved — withdraw- 
als— withdrawals  in  California — the  power  of  the 
President — act  of  June  25,  1910 — construction  of 
statute — protection  under  saving  clause — opinion  of 
the  writer — peculiar  conditions — questions  arising 
from  conditions — conflict  of  authority — established 
law — forcible  entry  and  detainer — possessio  pedis 
— conveyance  before  discovery — departmental  rul- 
ing— confusion  in  land  titles — rule  of  property — 
remedial  legislation — ambiguity  in  statute — con- 
struction of  statute — validity  of  withdrawals — 
discovery — insufficient  discovery — possession  while 
making  discovery — good  faith — single  discovery — 
scripping. 

§  120a.  Natural  gas — definition  of. 

§  121.  Mining  for  oil — no  limit — unlawful  drainage — pos- 
session of  land  not  possession  of  oil — nuisance — 
Californian  provision  —  commencing  operations  — 
diligence — test  well — partnership — limitation — par- 
tition— damages. 

§  121a.  Recent  Californian  legislation. 

§  122.  Oil  land  leases — implied  covenants — forfeiture — 
vested  right — paying  quantity — taxation. 

§  123.  Hydraulic  claims — restriction — constitutionality  of 
act — mining  without  restriction. 

§  124.     Dredge  claims — in  general — location. 

§  124a.  Recent  Californian  legislation — uplands. 

§  125.  Stone  claims — in  general — character  of  location — 
timber  and  stone  act — agricultural  entry — sale  by 
entryman— return  of  fees. 

§  126.  Salt  claims  —  character  of  deposit  —  limitation  —  ni- 
trate and  borate  land. 

§  127.     Tailings — deposition  of  tailings. 


CHAPTER  XIX. 
TIMBER    LANDS. 

§  129.  In  general — mineral  lands — mineral  location — sub- 
sisting location — subsequent  discovery. 

§  130.  Timber  cutting  on  mineral  lands — purposes — restric- 
tion— exceptional  right. 

§  131.     Timber  cutting  in  forest  reserves. 

§  132.     Timber  cutting  on  Indian  lands — criminal  offense. 

§  133.     Timber  cutting  on  abandoned  military  reservations. 

§  134.    Damages — bona  fide  purchaser. 


TABLE  OP  CONTENTS.  15 

CHAPTER    XX. 
TOWN    SITES. 

§  135.  In  general — corporate  authorities — county  judge — 

trust  —  mineral  reservation  —  insufficient  mineral 
rights. 

1 136.    Adverse  suits. 

CHAPTER  XXL 
TUNNEL-SITES. 

5 138.  In  general — beyond  boundaries — assessment  work — 
location  of  tunnel — location  of  blind  veins — prior 
location — adverse  location— line  of  tunnel — no  an- 
nual expenditure — abandonment — patent. 

1 139.     Dump. 

CHAPTER    XXII. 
WATER    RIGHTS. 

1 141.  Real  property — what  may  be  appropriated — volume 
and  extent — public  grants — private  grants. 

i  142.     Rights  of  way. 

1 143.  Appropriation — different  systems — compliance  with 
local  statute — no  constructive  appropriation — meas- 
ure of  right — non-user — adverse  user — interruption 
of  right — prescriptive  right. 

i  144.  Diversion  of  water — adjacent  water — pollution  of 
water. 

i  145.     Nuisance. 

i  146.  Tide  lands — not  subject  to  location — temporary  pos- 
session. 

CHAPTER   XXIII. 
NATURAL    OBJECT— PERMANENT    MONUMENT. 

i  149.     Natural  objects — reference. 

i  150.     Permanent  monuments. 

:  151.     Purpose — record— presumptions — burden  of  proo'r. 

CHAPTER   XXIV. 
DISCOVERY. 

i  154.  In  general — location  not  complete  without  discovery 
— requisites  of  discovery — discovery  may  be  insuf- 
ficient—  bisected  discovery  —  single  discovery  in 


16  TABLE   OF  CONTENTS. 

§  155.     Character  of  lode  discovery. 

§  156.  Development  of  discovery — local  provisions — essen- 
tial act  of  location — discovery  shaft. 

§  157.  Proof  of  discovery — rule  between  rival  claimants — 
reason  for  rule — test — contests  between  mineral 
claimants — mineralogical  and  geological  conditions 
—  supplementary,  evidence — testimony — discovery 
point — expert  testimony — conclusive  testimony — 
negative  testimony. 

§  158.  Loss  of  discovery — sale  before  discovery — sale  after 
discovery. 

CHAPTER    XXV. 
LOCATORS. 

§  162.     Rights  of  locators — basis  of  possession — forfeiture — 

abandonment. 
§  163.     Citizens    and    aliens — location    by    alien — rights    of 

alien — patent  proceedings — presumption. 
§  164.     Agents — no  divestiture  of  title. 
§  165.     Who  can  not  be  locators. 


CHAPTER   XXVI. 
ORIGINAL    LOCATIONS. 

i  168.  In  general — possessory  title — priority  of  title — inde- 
pendent locations — invalid  locations — form  of  lode 
location — iorm  of  placer  location — must  conform  to 
law — time  of  location — qualification  of  locator. 

i  169.     Equivalent  of  location — right  to  patent. 

i  170.     Fraudulent  placer  location — innocent  participants. 

i  171.     Voidable  locations. 

i  172.  Void  locations — absence  of  discovery — boundaries — 
illustrations — timber — trespass. 

i  173.  Size  of  lode  claims — measurement — presumption — 
excessive  size  —  segregation  —  reasonable  time  to 
cast  off. 

i  174.     Size  of  placer  claims — excessive  size. 

i  175.     Size  of  tunnel  sites — excessive  location. 

1 176.  Size  of  mill-sites — form. 

1 177.  Acts  of  location — acts  incumbent  on  locator — order 

of  performance — original  discoverer — re-locator  not 
discoverer — limitation — boundaries — time  and  man- 


TABLE   OF  CONTENTS.  17 

ner  of  marking  boundaries — essential  acts  of  loca- 
tion— possible  insufficiency  of  acts — question  of 
fact — what  controls — monuments  as  boundaries — 
position  of  lode  claim  monuments  —  consent  of 
owner  —  limitation  —  monuments  as  boundaries  — 
position  of  placer  claim  monuments — possible  dis- 
crepancy— changing  position  of  marks — oblitera- 
tion of  marks  —  no  presumption  —  by  whom  the 
marks  may  be  placed — end  lines — effect  of  estab- 
lishing end  lines — question  of  fact — constructive 
end  lines — side  lines — irregularity  of,  side  lines — 
agreed  lines. 

CHAPTER  XXVII. 
SUBSEQUENT    LOCATIONS. 

§  178.  Amended  or  additional  location  —  basis  —  office  of 
amendment — contents  of  notice — one  instrument. 

§  179.  Re-location — when  void — assumption  of  risk — statu- 
tory bar  to  re-location — fraudulent  re-location — ex- 
ception— improvements. 

§  180.  Overlapping  locations  —  basis  —  boundary  marks  — 
consent  of  owner — re-location — application  for  pat- 
ent— laches  and  limitation. 

§  181.  Lode  location  within  placer  claim — presumption — 
t  trespass — not  trespass — limitation  of  area. 

§  182.     Location  of  cross  lodes. 

CHAPTER   XXVIII. 
NOTICE    OF    LOCATION. 

§  185.  In  general — supplementary  legislation — contents  of 
record — additional  recitals — not  necessarily  part  of 
location — substantial-  compliance — oral  testimony — 
importance  of  boundaries — construction  of  notice — 
sufficiency  of  notice — purpose  fulfilled. 

§  186.  The  posted  notice — evidence  of  discovery  and  appro- 
priation— recitals — question  of  fact — description — 
name  of  lode — errors  in  description — surplusage — 
where  posted — miner's  devices — presumption. 

§  187.     The  amended  notice — intervening  rights — evidence. 

§  188.  The  re-location  notice — void  notice — effect  of  state- 
ment— proof. 

§  189.     Ante-dated  notice — felony. 

§  190.  Where  recorded — county  recorder — district  recorder 
— failure  to  make  record — description — what  rec- 


18  TABLE  OP  CONTENTS. 

ord  need  not  show — question  of  fact — record  as 
notice — record  not  notice — record  as  title — effect  of 
record — record  as  evidence  —  does  not  preclude 
parol  evidence — when  prima  facie  evidence — color 
of  title. 

CHAPTER  XXIX. 
ANNUAL  EXPENDITURE. 

§  193.     Provisions  of  the  mining  act — district  rule. 

§  194.  Place  of  performance — character  of  labor  and  im- 
provements— personal  services — group  of  locations 
— labor  upon  group — burden  of  proof. 

§  195.  Sufficiency  of  performance — compliance  with  local 
statute  or  district  rule — payment  not  conclusive — 
payment  bears  upon  value — payment  not  essential. 

§  196.  Proof  of  performance — not  mandatory  laws — effect 
of  filing — neglect  to  file  not  fatal. 

§  197.  Non-performance — when  claim  forfeited  —  claim  of 
forfeiture — adverse  possession — what  is  not  excuse 
for  non-performance. 

§  198.  Resumption  of  labor — time  for  resumption — effect  of 
resumption — what  is  not  resumption — trespass. 

§  199.     Who  may  make  expenditure — presumption. 

§  200.  Failure  to  contribute — effect  of  demand — character 
of  title — basis  of  notice — right  to  give  notice — 
contents  of  notice — personal  service — publication. 

CHAPTER  XXX. 
PATENTS. 

§  206.    In  general — mining  rights — agricultural  patent — lode 

patent — placer  patent — equivalent  to  patent — void 

patents — voidable  patents. 
§  207.    Legal  title — equitable  title  —  superiority  of  title  — 

priority  of  title — evidence — facts  settled  by  patent 

— presumptions. 
§  208.     State  legislation. 

CHAPTER   XXXI. 
PATENT    PROCEEDINGS. 

§  211.  In  general — manner  of  obtaining  patent — limitations 
— survey  of  claims — all  placer — mixed  lode  and 
placer — waiver — adverse  claimant — time  to  apply 
for  a  patent — place  of  filing — time  to  complete  ap- 


TABLE  OF  CONTENTS.  19 

plication — completion — payment — divers  patents — 
erroneous  description. 

i  212.  The  survey — accompanying  papers — deputy  surveyor 
— duties  of  deputy — errors  of  deputy — expenditure 
upon  the  claim  —  conclusiveness  of  certificate  — 
equivalent  of  certificate — basis  of  deputy's  report — 
sufficient  expenditure  —  insufficient  expenditure — 
plat  and  field  notes. 

}  213.  Posting  plat  and  notice — proof  of  posting — time  for 
filing. 

I  214.  Proceedings  in  the  local  land  office — application  for 
patent — citizenship — appointment  of  attorney — ab- 
stract of  title — subsequent  transfers — the  notice — 
contents  of  notice — insufficient  notice — publication 
of  notice — charges  for  publication — proof  of  publi- 
cation— proof  of  continuous  posting — statement  of 
fees  and  charges — application  to  purchase — receiv- 
er's receipt  —  transmission  of  record  —  protest  — 
grounds  of  protest — waiver  of  protest — delayed  pat- 
ent— cancellation  of  entry. 

}  215.  Adverse  claim  —  distinction  —  contents  of  adverse 
claim — time  for  filing  adverse — computation  of  time 
— no  extension  of  time — effect  of  filing  adverse — 
evidence  of  waiver — appeal. 

}  216.  The  adverse  suit — subsequent  proceedings — duty  of 
register — proceedings  in  general  land  office. 


CHAPTER  XXXII. 
TAXATION   OF   MINING  CORPORATIONS. 

!  220.  Federal  taxation — returns — filing  return — principal 
place  of  business — penalty. 

i  221.  Commissioners'  decisipns — oil  wells — dry  wells — 
timber  cutting — depreciation  of  minerals — exhaus- 
tion of  deposits — unearned  increment — market 
value  of  minerals  —  determination  of  value — 
unit  value — record  of  estimates — compilation  of 
values — immaterial  question — excess  in  develop- 
ment— memorandum  of  exclusion — deduction  for 
depreciation  —  royalties  —  leasehold  investment  — 
limited  deduction — no  deduction. 

I  222.     Undetermined  questions. 

i  223.  State  taxation — graduated  tax — time  of  payment — 
forfeiture — revival — penalty — trustees — settlement 
of  affairs — popular  fallacy — consent  not  necessary. 

i  224.    Recent  legislation. 


CHAPTER  I. 

MINING    LAW    IN    THE    UNITED    STATES. 

§  1.  Local  rules,  regulations  and  customs — cause  of  estab- 
lishment—  common  law  of  mining  —  statutory  limita- 
tions— Californian  provision — absence  of  rules  and  cus- 
toms —  when  void  —  presumptions — construction — evi- 
dence— effect  of  non-observance. 

§  2.   Statutory   law — lack   of   uniformity: — salutary   provisions. 

§  3.  Alaska — additional  provisions — explorations  on  Behring 
Sea — dredging — beach  claims  —  roadway  —  aliens  —  ad- 
verse claims — adverse  suits — adverse  possession. 

§  4.  Hawaii — land  department. 

§  5.  Philippine  Islands — dissimilar  provisions — tunnel  sites — 
land  department. 

§  6.  Porto  Rico. 

§  1.    Local  Rules,  Regulations  and  Customs.    The 

basic  principle  of  the  rules,  regulations  and  customs 
of  miners  are  discovery,  appropriation  and  develop- 
ment.1 They  were  introduced  into  California  by 
the  early  miners,  who  obtained  them  from  various 
foreign  sources.2 

2.  CAUSE  OF  ESTABLISHMENT.    The  absence  of  stat- 
utory law  regulating  mining  and  the  use  of  water 
on  the  public  domain  was  the  cause  of  their  estab- 
lishment.3 

3.  COMMON  LAW  OF  MINING.    They  were,  in  their 
general  features,  adopted  throughout  all  the  mining 
regions  of   the  United   States   and   are   deemed   the 
common  law  of  mining  in  the  United  States.4 

4.  STATUTORY  LIMITATIONS.    Local  rules  and  regu- 
lations are  now  practically  superseded  by  legislative 
enactment    in    the    mining    states    and    territories, 
although  miners  are  still  permitted  in  their  respective 
districts,5  particularly  in  Alaska,6  to  make  rules  and 
regulations  and  adopt  customs  not  in  conflict  with  the 
paramount  law.7 

5.  CALIFORNIAN    PROVISION.      Under    the    express 
provisions   of   the    "mining    act"   of   California,    (in 
effect  July  1,  1909),  the  mining  districts  or  the  rules 


22  MINING  LAW   IN  THE   UNITED   STATES.          [Ch.  1 

and  regulations  thereof  in  that  State,  are  not,  in 
any  manner  to  be  construed  as  thereby  affected  or 
abolished.8 

6.  ABSENCE  OF  KULES  AND  CUSTOMS.    Where  there 
are  no  local  statutes  nor  district  rules,  regulations  or 
customs  affecting  the  manner  of  acquiring  and  main- 
taining possession  of  a  mining  claim,  the  observance  of 
the  provisions  of  the  federal  mining  act  is  sufficient.9 

7.  WHEN  VOID.     When  the  district  rules  or  cus- 
toms are  unreasonable,  in  conflict  with  higher  law,10 
fall  into   disuse   or   are  generally  disregarded,   they 
are  void.11 

8.  PRESUMPTIONS.    Where  they  are  shown  to  have 
been  established  their  existence  is  presumed  to  con- 
tinue 12  unless  abrogated  by  federal  or  local  legisla- 
tion.    In  the  absence  of  proof  of  their  existence  it  is 
presumed  that  none  exist.13 

It  will  be  presumed  that  a  party  in  possession  of  a, 
mining  claim  holds  it  in  accordance  with  the  district 
rules  and  customs.14 

9.  CONSTRUCTION.    In   a  legal   sense  there   is  no 
distinction  between  a  written  rule  or  regulation  and  a 
custom   or  usage.15      The  validity  of   each   depends 
upon  the   customary  obedience   and  acquiescence  of 
the  miners  of  the  district.16    A  custom  reasonable  in 
itself  will  prevail  over  a  written  rule  which  has  fallen 
into  disuse  and  is  generally  disregarded.17    A  miner's 
rule  is  subject  to  the  same  rule  of  construction  as  a 
statute,18  although  it  does  not,  like  a  statute,  acquire 
validity  by  its  mere  enactment.19 

10.  EVIDENCE.     Courts  do  not  take  judicial  notice 
of  miner's  rules  and  customs.20     The  proof  of  their 
existence  is  governed  by  the  ordinary  rules  of  evi- 
dence.21 

11.  EFFECT  OF  NON-OBSERVANCE.     While  a  valid 
rule,  regulation  or  custom  is  in  force  it  must  be  com- 
plied with.22    It  has  been  held  that  no  forfeiture  fol- 


§  1]  LOCAL  RULES.  23 

lows   non-compliance    unless   the   rules    so    expressly 
provide.23 

1.  Jennison  v.  Kirk,   98  U.  S.  453. 

2.  Yale  on  Min.  Claims,  58;    DeFoos  on  Mines,  5,  7;    see,  gen- 

erally, Lindley  on  Mines,  (2d  ed.)  §  1,  et  sect.  For  a 
collection  of  District  rules  see  Browne's  Report,  H.  R. 
Ex.  Doc.  No.  29,  39th  Cong.  2d  Sess. 

3.  Jennison  v.  Kirk,   ante. 

4.  Morton  v.   Solambo  Co.,   26   Cal.   527;  King  v.  Edwards,   1 

Mont.  235. 

5.  Erhardt  v.  Boaro,   113  U.   S.   527;    see  Northmore  v.  Sim- 

mons, 97  Fed.  386;  Sisson  v.  Sommers,  24  Nev.  379.  As 
to  Alaska,  see  31  Stats.  321;  Butler  v.  Good  Enough 
Co.,  1  Alaska  246;  Price  v.  M'Intosh,  1  Alaska  286;  see 
Pierce's  Wash.  Code,  §  6452;  Wyo.  Rev.  Stats.  §  2533;  see 
Wyo.  Stats.  1901,  p.  39. 

6.  31  Stats.  321. 

7.  Erhardt  v.  Boaro,  ante. 

8.  C.   C.  §1426r. 

9.  Anderson  v.  Caughey,  3  Cal.  A.  22;  McKay  v.  McDougall, 

25  Mont.  258;  Golden  Fleece  Co.  v.  Cable  Con.  Co.,  12 
Nev.  312;  see  Sears  v.  Taylor,  4  Colo.  38. 

10.  Rev.   Stats.   §  2324. 

11.  Haws  v.  Victoria  Copper  Co.,   160  U.  S.  303.     As  to  rules 

and  customs  invalid  because  inconsistent  with  para- 
mount law  or  because  unjust  or  unreasonable  see 
Woodruff  v.  N.  Bloomfield  Co.,  18  Fed.  763;  Butler  v. 
Good  Enough  Co.,  ante;  Price  v.  M'Intosh,  ante;  Woody 
v.  Bernard,  69  Ark.  579;  Prosser  v.  Parks,  18  Cal.  47; 
Table  Mt.  Co.  v.  Stranahan,  21  Cal.  548;  Strang  v. 
Ryan,  46  Cal.  33;  Original  Co.  v.  Winthrop,  60  Cal.  678; 
Cleary  v.  Skiffich,  28  Colo.  362;  Penn  v.  Oldhauber,  24 
Mont.  287. 

12.  Riborado  v.  Quang  Pang  Co.,  2  Ida.   (Hasb.)   144. 

13.  McCleary  v.  Broaddus,   14   Cal.   A.   60. 

14.  Robertson  v.  Smith,  1  Mont.  410;  see  Anderson  v.  Caughey, 

ante. 

15.  Harvey  v.  Ryan,  42  Cal.  626. 

16.  Id.;    see  Haws  v.  Victoria  Copper  Co.,  ante. 

17.  Harvey  v.  Ryan,  ante. 

18.  Rush  v.  French,  1  Ariz.  99. 

19.  Harvey  v.  Ryan,  ante;  see  Haws  v.  Victoria  Copper  Co., 

ante. 

20.  Butte  City  Co.  v.  Baker,  196  U.  S.  119;    Sullivan  v.  Hense, 

2  Colo.  424;    see  §  19,  note  2,  post. 

•21.  Orr  v.  Haskell,  2  Mont.  225;  see  Campbell  v.  Rankin,  99 
U.  S.  261;  Doe  v.  Waterloo  Co.,  70  Fed.  455;  English  v. 
Johnson,  17  Cal.  107;  Pralus- v.  Pacific  Co.,  35  Cal.  31; 
Harvey  v.  Ryan,  ante;  Sears  v.  Taylor,  ante;  Roberts 
v.  Wilson,  1  Utah,  292. 

22.  Northmore  v.  Simmons,  ante;  Hughes  v.  Ochsner,  27  L.  D. 

396;  Riborado  v.  Quang  Pang  Co.,  ante;  King  v.  Ed- 
wards, ante;  Mallett  v.  Uncle  Sam  Co.,  1  Nev.  188. 

23.  Jupiter  Co.  v.  Bodie  Con.   Co.,   11  Fed.   666;   Sturtevant  v. 

Vogel,  167  Fed.  448;  Johnson  v.  McLaughlin,  1  Ariz. 
493;  Emerson  v.  McWhirter,  133  Cal.  510;  Flaherty  v. 
Gwinn,  1  Dak.  509;  but  see  King  v.  Edwards,  ante. 


24  MINING  LAW  IN  THE  UNITED   STATES.         [Ch.  1 

§  2.  Statutory  Law.  Except  within  the  State  of 
Texas,  which  has  its  independent  code  of  mining  law1 
the  statutory  mining  law  consists  of  the  acts  of  Con- 
gress and  the  laws  of  the  various  mining  states  and 
territories  supplemental  thereto.2  This  subsidiary 
legislation  is  invited  by  the  mining  act  of  Congress, 
with  the  proviso  that  it  shall  not  conflict  with  the 
laws  of  the  United  States.3  If  repugnant  thereto  it 
is  void.4 

2.  LACK    OF    UNIFORMITY.     The    application    and 
operation  of  the  mining  law  are  not  uniform.    Certain 
Congressional  enactments  apply  only  to  Alaska.5    The 
mining  acts  of  the  several  mining  states  are  dissimilar 
in  detail,  have  no  extra-territorial  force,  and  often 
needlessly  add  to  the  burden  of  the  locator.6 

3.  SALUTARY     PROVISIONS.       Salutary     provisions 
found  in  the  local  statutes  are  such  as  provide  for  the 
recording  of  an  affidavit  of  annual  expenditure,  the- 
legal  effect  to  be  given  thereto,7   and  for  a  means 
for  establishing  record  evidence  of  a  demand  for  con- 
tribution   for    assessment    work    from    a    delinquent 
co-owner.8 

1.  Sayles  Ann.   Civ.   St.   Texas   1897,   arts.   3481-3498t;     Sayles 

Ann.  Civ.  St.  Supp.  1897-1904,  355;    Tex.  St.  1907,  p.  331. 

2.  Rev.   Stats.  §  2324,  Saxton  v.  Perry,   47  Colo.   263.     The  his- 

tory of  mining  has  proved  that  the  law  of  1872,  and 
amendments  thereto  do  not  offer  clear,  adequate  and 
simple  solution  for  some  of  the  practical  conditions 
that  arise  in  the  development  of  the  mining  industry. 
King  v.  Amy  Co.,  9  Mont.  543. 

3.  Rev.   Stats.   §  2319. 

4.  Butte  City  Co.  v.  Baker,  196  U.  S.   119;  Northmore  v.  Sim- 

mons, 97  Fed.  386;  Original  Co.  v.  Winthrop,  60  Cal. 
678;  Sharkey  v.  Candiani,  48  Or.  112;  Copper  Globe  Co. 
v.  Allman,  23  Utah  410. 

5.  31  Stats.  321. 

6.  See  Anderson  v.  Caughey,   3   Cal.  A.  22;  McKay  v.  McDou- 

gall,  25  Mont.  258;  Golden  Fleece  Co.  v.  Cable  Con. -Co., 
12  Nev.  312. 

7.  Book   v.    Justice    Co.,    58    Fed.    106;    Ariz.    Rev.    Stats.    1901, 

§§3245-3249;  Cal.  Stats.  1891,  p.  219;  Ida.  C.  C.  §3211; 
Nev.  Com.  Laws,  §237;  Mills  Ann.  Stats.  Colo.,  §3161; 
Utah  Com.  Laws,  §1500;  Pierce's  Wash.  Code,  §6445; 
Riste  v.  Morton,  20  Mont.  139. 

8.  Cal.  Stats.  1891,  p.  155;  C.  C.  §  1426o;  Nev.  Com.  Laws,  §  217. 


§  3]  ALASKA.  25 

§  3.  Alaska,  The  laws  of  the  United  States  relat- 
ing to  mining  claims,  mineral  locations,  and  rights 
incident  thereto  have  been  extended  to  the  district  of 
Alaska. 

2.  ADDITIONAL  PROVISIONS.    Provision  is  also  made 
for  the  appointment  of  mining  recorders,  the  record- 
ing of  location  notices,  affidavits  of  annual  expendi- 
ture and  the  place  where  such  instruments  shall  be 
recorded. 

3.  EXPLORATIONS  ON  BEHRING  SEA.     Mining  may 
be  conducted  on  the  Behring  Sea  subject  to  regulations 
prescribed  by  the  Secretary  of  War. 

4.  DREDGING.    Dredging  may  be  conducted  in  said 
sea  subject  to  such  regulations. 

5.  BEACH  CLAIMS.     Miners  on  the  beach  of  said 
sea  have  the  right  to  dump  tailings  into  or  pump  from 
the  sea  opposite  their  claims  except  where  such  dump- 
ing would  actually  obstruct  navigation. 

6.  ROADWAY.     The  reservation  of  a  roadway  60 
feet  wide  under  an  act  extending  the  homestead  laws, 
etc.,  to  Alaska  does  not  apply  to  mineral  lands  and 
townsites.1 

7.  ALIENS.     Mining  rights  are  accorded  to  native 
born  citizens  of  the  Dominion  of  Canada  under  certain 
restrictions.2 

8.  ADVERSE  CLAIMS.    Adverse  claims  may  be  filed 
within  the  60  days  period  of  newspaper  publication  or 
within  8  months  thereafter.3 

9.  ADVERSE  SUITS.     Adverse  suits  may    be    com- 
menced within  60  days  after  the  filing  of  the  adverse 
claim.4 

10.  ADVERSE  POSSESSION.    Adverse  possession  of  a 
mining  claim  as  against  the  locator  thereof  or  his  suc- 
cessors in  interest  cannot  be  instituted  before  the  issu- 
ance of  patent.5 


26  MINING  LAW   IN  THE   UNITED   STATES.          [Ch.  1 

1.  23   Stats.   24;   31  S'tats.  321;  McFadden  v.  Mt.  View  Co.,   97 

Fed.  670;  as  to  "Beach  claims"  in  Utah  see  Jeremy  Co. 
v.  Thompson,  20  L.  D.  299.  For  regulations  concern- 
ing the  manner  of  acquiring  title  to  townsites  in 
Alaska,  see  Circular  33  L.  D.  163. 

2.  30  Stats.  415;  see  Instructions  32  L.  D.  424. 

3.  39  L.  D.  49. 

4.  Id. 

5.  Tyee  Con.  Co.  v.  Jennings,  137  Fed.  863. 

§  4.  Hawaii.  Title  to  public  land  in  Hawaii  is 
obtained  under  local  statutes.1 

2.  LAND  DEPARTMENT.  The  land  department  of 
the  United  States  has  no  jurisdiction  over  the  public 
lands  within  Hawaii.2 

1.  31  Stats.   154;   see  Opinion,   30  L.  D.   295;  McFadden  v.  Mt. 

View  Co.,  97  Fed.  670. 

2.  Michael  Pszyk,  37  L.  D.  18. 

§  5.  Philippine  Islands.  A  special  act  regulates 
the  manner  of  acquiring  and  holding  mining  claims^ 
in  the  Philippine  Islands.1 

2.  DISSIMILAR  PROVISIONS.     This  act  provides  for 
lode  locations  of  equal  length  and  breadth  without 
extra-lateral  right,  and  restricts  the  "holder"  to  one 
location  on  the  same  vein  or  lode.     It  further  pro- 
vides how  a  claim  shall  be  marked,  and  that  the  loca- 
tion notice  shall  be  verified.    That  such  notice  shall  be 
recorded  within  a  certain  time  and  have  on  its  back 
a  sketch  plan  showing  as  near  as  may  be  the  position 
of  the  adjoining  mineral  claims  and  the  size  or  shape 
of  the  claim  to  be  recorded.     Unless  recorded  within 
the  statutory  period  the  claim  is  deemed  to  be  aban- 
doned.   Abandonment  is  also  effected  by  filing  written 
notice  thereof  with  the  mining  recorder. 

3.  TUNNEL  SITES.    There  is  no  provision  as  to  tun- 
nel sites. 

4.  LAND  DEPARTMENT.    The  land  department  has 
no  jurisdiction  in  these  Islands. 

1.  32    Stats.    697;     33    Stats.    691;     see    Reavis   v.    Fianza,    215 
U.  S.  16. 


§  10]  COURTS.  27 

§  6.  Porto  Rico.  Public  land  in  Porto  Rico  is  un- 
der the  control  of  the  government  established,  and 
the  legislative  assembly,  created  by  Congress.1 

1.   31  Stats.  80;  32  Stats.  731;   see  McFadden  v.  Mt.  View  Co., 
97  Fed.   670. 


CHAPTER   II. 

COURTS. 

§  10.  In   general — jurisdiction — state  courts — federal   courts — 

jurisdiction — remand — land  department — stay. 

§  11.  Federal   question — pleadings. 

§  12.  Union  of  remedies — joinder — exception. 

§  13.  Dismissal  of  cause. 

§  14.  Appeal — federal  courts. 

§  15.  Appeal — state  courts — writ  of  error. 

§  16.  Conflicting  decisions. 

§  17.  Recent  legislation. 

§  10.  In  General.  "A  court  of  competent  juris- 
diction/' as  that  term  is  used  in  the  mining  act,  un- 
doubtedly means  a  court  of  general  jurisdiction, 
whether  it  be  a  state  court  or  a  federal  court.1 

2.  STATE  COURT.    The  jurisdiction  of  a  state  court 
is  only  such  as  is  conferred  upon  it  by  the  laws  of  the 
state  in  which  it  exists.2 

3.  FEDERAL  COURT.     The  jurisdiction  of  the  fed- 
eral court  depends  upon  either  diversity  of  citizen- 
ship 3  or  a  federal  question  being  involved  in  the  con- 
troversy.4   The  matter  in  dispute  must  exceed  in  value 
the  sum  of  $2,000,  exclusive  of  interest  and  costs.5 

4.  JURISDICTION.     Where  the  jurisdictional    facts 
exist  and  appear  upon  the  record  a  cause  may  be  com- 
menced in  the  latter  court  6  or,  within  the  statutory 
period  may  be  removed  thereto  from  the  state  court 
in  which  it  may  have  been  brought  7  upon  a  petition 
affirmatively  showing  such  facts.8 

5.  REMAND.    Upon  the  presentation  of  such  a  peti- 
tion accompanied  by  a  proper  bond,  the    order    of 
removal  is  made;9    the  case  being  subject  to  remand 


28  COURTS.  [Ch.  2 

if  the  jurisdictional  facts  do  not  clearly  appear  of 
record.10 

6.  LAND    DEPARTMENT.     Questions    affecting    the 
character  of  land  1:L  or  as  to  the  party  entitled  to  pur- 
chase it  from  the  government 12  are  wholly  within  the 
jurisdiction  of  the  land  department. 

7.  STAY.     While  a  contest  is   pending  therein  a 
court  should  not  interfere  with  nor  proceed  to  the  de- 
termination of  a  cause  involving  the  property,  but 
should  dismiss  the  case  or  stay  proceedings  therein 
until  the  matter  is  concluded  in  the  department;13 
unless  there  exists    the    necessity  of  preserving    the 
peace  or  of  determining  controversies  arising  out  of 
temporary  rights  in  public  land  14  or  to  prevent  waste 
which  will  result  in  a  serious  and  permanent  injury 
to  the  land.15 

1.  Blackburn  v.  Portland  Co.,  175  U.  S.  571. 

2.  Nome  &  Sinook  Co.  v.  Simpson,  1  Alaska,  578;  Bernard  v. 

Parmelee,  6  Cal.  A.  537;  but  see  Warnekros  v.  Cowan, 
(Ariz.)  108  Pac.  238;  Lightner  v.  Court,  14  Cal.  A.  642. 

3.  Shoshone  Co.  v.  Rutter,  177  U.  S.  505. 

4.  Id.     An  attempt  to  raise  a  federal  question  in  an  assign- 

ment of  errors  in  the  Supreme  Court  of  the  United 
States  is  too  late.  Chapin  v.  Fye,  179  U.  S.  127. 

Elaboration  of  an  assignment  of  errors  after  appeal 
is  taken  to  a  federal  circuit  court  of  appeals  is  futile. 
Doe  v.  Waterloo  Co.,  70  Fed.  455. 

5.  U.   S.   Comp.   Stats.,  p.   508;   see  §17,  post. 

6.  Blackburn  v.  Portland  Co.,  ante;  Florida  Cent.  Co.  v.  Bell, 

176  U.  S.  321.  It  is  possible  that  the  requisite  diversity 
of  citizenship  may  be  shown  by  amendment  to  the 
complaint.  Newcomb  v.  Burbank,  181  Fed.  334. 

7.  Phoenix   Co.  v.   Pechner,    95   U.   S.    183;   De   Lamars   Co.   v. 

Nesbitt,  177  U.  S.  523;  Remington  v.  C.  P.  R.  Co.,  198 
U.  S.  95.  For  practice  on  removals  in  general,  see 
Foster's  Fed.  Prac.  (4th  ed.),  §  385. 

8.  U.  P.  R.  Co.  v.  Myers,  115  U.  S.  1;  Powers  v.  C.  &  O.  R.  Co., 

169  U.   S.   92.     See  Foster's  Fed.   Prac.    (4th  ed.),  §  385b. 

9.  Crehore  v.  O.  &  M.  R.  Co.,   131  U.  S'.   240. 

10.  Cameron  v.  Hodges,  127  U.  S.  322;  Crehore  v.  O.  &  M.  R. 

Co.,  ante.  For  amendment  of  record,  see  Foster's  'Fed. 
Prac.,  ante. 

11.  Standard  Co.  v.  Habishaw,  132  Cal.  115. 

12.  Marquez  v.  Frisbie,   101  U.  S.  473;    Steel  v.  St.  Louis  Co., 

106  U.  S.  447;  Lee  v.  Johnson,  116  U.  S.  48;  Sanford  v. 
Sanford,  139  U.  S.  642.  As  to  decisions  of  the  land  de- 
partment upon  matters  of  law  see  Hastings  Co.  v. 
Whitney,  132  U.  S.  357;  Menotti  v.  Dillon,  167  U.  S.  703; 
see  §  23,  4  post. 


§  12]  UNION  OF   REMEDIES.  29 

13.  Cosmos  Co.  v.  Gray  Eagle  Co.,  190  U.  S.  301;    Humbird  v. 

Avery,    110   Fed.   465;    Ripinsky   v.   Hinchman,    181   Fed. 
786;    see  Lightner  Co.  v.  Court,  ante. 

14.  Warnekros  v.  Cowan,  ante. 

15.  Humbird  v.  Avery,  ante;    Lightner  v.  Court,  ante. 

§  11.  Federal  Question.  A  federal  question  does 
not  necessarily  arise  under  the  mining  act,  as  the  case 
made  may  not  involve  any  question  as  to  the  construc- 
tion or  effect  of  the  Constitution  or  laws  of ,  the  United 
States  but  may  simply  present  a  question  of  facts  as  to 
the  time  of  the  discovery  of  mineral,  the  location  of  the 
claim  on  the  ground  or  a  determination  of  the  mean- 
ing and  effect  of  the  local  rules  and  customs  pre- 
scribed by  the  miners  of  the  district  or  the  effect  of 
state  statutes.1 

2.  PLEADING.  The  jurisdictional  facts  must  be 
shown  in  the  plaintiff's  pleadings  or  in  the  petition  for 
removal.2 

1.  Blackburn  v.   Portland  Co.,  175  U.  S.   571;   Shoshone  Co.  v. 

Rutter,   177  U.   S.   505. 

2.  Metcalf  v.  Watertown,  128  U.  S.  586;  Argonaut  Co.  v.  Ken- 

nedy Co.,  84  Fed.  1;    Kan.  City  Co.  v.  Quigley,  181  Fed. 
190. 

§  12.  Union  of  Remedies.  Legal  and  equitable 
causes  of  action  cannot  be  united  in  a  federal  court.1 

2.  JOINDER.     Where  such  joinder  exists  prior  to 
removal  appropriate  pleadings  must  thereafter  be  filed 
in  both  the  law  and  equity  side  of  the  court  within  the 
time  provided  by  the  rules.2 

3.  EXCEBTION.    A  pleading  which  has  been  filed  in 
a  state  court  prior  to  removal  and  setting  forth  an 
equitable  cause  of  action  need  not  be  recast,  though 
lacking  the  formal  fashion  of  a  bill  in  equity.3 

1.  AVhitehead  v.  Shattuck,  138  U.  S.  146;  So.  Penn.  Co.  v. 
Miller,  175  Fed.  729;  Clark  v.  Rosario  Co.,  176  Fed.  180. 
The  equity  jurisdiction  conferred  on  the  federal 
courts  is  the  same  as  that  the  High  Court  of  Chancery 
in  England  possesses;  it  is  subject  to  neither  limita- 
tion nor  restraint  by  state  legislation  and  is  uniform 


30  COURTS.  [Ch.  2 

throughout  the  different  states  of  the  union.  U.  P.  R. 
Co.  v.  Flynn,  180  Fed.  565. 

A  suit  for  an  accounting  may  be  joined  with  an  action 
for  trespass  in  a  federal  court.  Con.  Wyo.  Co.  v.  Cham- 
pion Co.,  63  Fed.  540. 

2.  McDonnell  v.   Eaton,   18  Fed.   710. 

3.  Durgan  v.  Redding,  103  Fed.  914. 

§  13.  Dismissal  of  Cause.  A  cause  may  be  dis- 
missed upon  motion  or  by  the  trial  or  appellate  court, 
upon  its  own  motion,  at  any  time  before  its  final  dis- 
position when  it  appears  that  it  is  not  within  the 
jurisdiction  of  the  court  x  or  has  been  improperly  or 
collusively  brought  for  the  purpose  of  creating  a  case 
cognizable  or  removable  thereto.2 

1.  Morris  v.  Giimer,  129  U.  S.  315;  Newcomb  v.  Burbank,  181 

Fed.  334;  Hare  v.  Birkenfield,  181  Fed.  825. 

2.  Hawes  v.   Contra  Costa  Co.,    104   U.   S.    450;   Shreveport  v. 

Cole,  129  U.  S.  36. 

§  14.  Appeal  —  Federal  Courts.  An  appeal  lies 
from  the  judgment  of  a  circuit  court  to  a  circuit  court 
of  appeals x  and  from  thence  may  be  taken  to  the 
Supreme  Court  of  the  United  States  by  appeal  or 
writ  of  error  when  it  appears  that  the  jurisdiction 
of  the  court  is  in  issue  or  that  the  case  involves  the 
construction  or  application  of  the  Constitution  of  the 
United  States  or  when  the  constitution  or  law  of  a 
state  is  claimed  to  be  in  contravention  of  the  Consti- 
tution of  the  United  States.2 

1.  26    Stats.   826;   Alaskan   appeals   and  writs   of   error   go    to 

the  Circuit  Court  of  Appeals  for  the  9th  judicial  cir- 
suit,  35  Stats.  585;  Shields  v.  Mongollon  Co.,  137  Fed. 
539;  see  Alexander  McKenzie,  180  U.  S.  536;  Judiciary 
Act  of  1911,  36  Stats,  p.  1087.  » 

2.  U.  S.   Comp.   Stats.,  p.   546.     The  same  case  may  be  taken 

up  both  by  appeal  and  writ  of  error.  McFadden  v. 
Mt.  View  Co.,  97  Fed.  670.  For  form  of  supersedeas, 
see  Alexander  McKenzie,  ante. 

§  15.  Appeal  —  State  Courts.  Appeals  in  state 
courts  are  governed  by  the  laws  of  the  several  states. 

2.  WRIT  OF  ERROR.  A  writ  of  error  lies  from  a 
final  decision  of  a  state  supreme  court  to  the  Supreme 


§  17]  RECENT   LEGISLATION.  31 

Court  of  the  United  States  when  it  affirmatively  or 
by  fair  implication  appears  that  some  federal  ques- 
tion was  involved  which  was  necessary  to  the  deter- 
mination of  the  case.1  The  mere  fact  that  the  action 
is  brought  in  support  of  an  "adverse  claim"  is  not 
sufficient.2 

1.  Broughton  v.  Exchange  Bank,  104  U.  S.  427. 

2.  Beals  v.  Cone,  188  U.  S.  184. 

§  16.  Conflicting  Decisions.  When  a  conflict  exists 
between  a  decision  of  the  Supreme  Court  of  the 
United  States  and  that  of  another  appellate  court 
regarding  federal  questions,  the  former  prevails.1  It 
is  the  special  prerogative  of  the  former  court  to  con- 
strue federal  statutes.2 

1.  Quigley  v.  Gillett,  101  Cal.  462;  Foss  v.  Johnstone,   (Cal.  A.) 

110  Pac.  294;  Duncan  v.  Fulton,  15  Colo.  A.  140;  Nash  v. 
McNamara,  30  Nev.  114;  Small  v.  Lutz,  41  Or.  570. 

2.  Street  v.  Delta  Co.,  42  Mont.  371. 

§  17.  Recent  Legislation.  An  Act  entitled  "An" 
Act  to  codify,  revise,  and  amend  the  laws  relating  to 
the  judiciary/7  approved  March  3,  1911,  and  taking 
effect  on  January  1,  1912,  among  other  things,  merges 
the  Circuit  and  District  Courts  into  the  "District 
Court/'  with  both  civil  and  criminal  jurisdiction.  In 
civil  cases,  thereunder,  the  amount  in  controversy 
must  exceed  $3,000,  exclusive  of  interest  and  costs.1 

1.   36  S'tats.,  p.   1087. 

CHAPTER  III. 

ACTIONS. 

§  19.  Possessory  actions  —  possessory  right  —  pleading  —  citi- 
zenship— judgment — receivers. 

§20.  Adverse  suit — jurisdiction — pleading — trial — dismissal — 
non-suit — judgment — final  judgment. 

§  19.  Possessory  Actions.  A  possessory  action  for 
the  recovery  of  any  mining  title  or  for  damages  to  any 


32  ACTIONS.  [Ch.  3 

such  title  is  adjudged  by  the  law  of  possession  between 
the  parties,  although  the  paramount  title  to  the  land 
is  in  the  United  States.1 

2.  POSSESSORY  EIGHT.     The  "possessory  right"  is 
the  right  to  explore  and  work  the  property  under  the 
existing  laws  and  regulations  on  the  subject.2 

3.  PLEADING.     The  complaint  need  not  be  different 
from  that  required  in  possessory  actions  generally.    It 
is  sufficient  to  allege  ownership  and  right  of  possession 
and  that  the  defendant  wrongfully   entered  therein. 
The  means  by  which  the  possessor  is  entitled  to  the 
possession  are  matters  of  evidence.3 

4.  CITIZENSHIP.     It  is  not  necessary  to  either  plead 
or  prove  the  citizenship  of  either  party  to  the  action.4 

5.  JUDGMENT.     Pending    litigation    is    ineffective 
and  the  effect  of  a  judgment  previously  or  subse- 
quently obtained  by  an  adverse  claimant  is  nugatory 
as  against  an  applicant  for  patent,  unless  made  th'e 
subject  of  an  "adverse  claim"  and  suit  thereunder.5 

6.  RECEIVERS.     A  court  will  appoint  a  receiver  to 
take  possession  of  an  unpatented  location  pending  liti- 
gation to  the  end  that  the  annual  work  may  be  per- 
formed for  the  benefit  of  the  party  who  may  ulti- 
mately prevail  in  the  suit,  in  order  to  conserve  the 
property  for  the  benefit  of  the  party  entitled  thereto, 
and  prevent  the  extraction  and  disposition  of  the 
mineral  therein.6 

1.  Rev.  Stats.  §910;  see  Belk  v.  Meagher,  104  U.  S.  279;  Rico- 

Aspen  Co.  v.  Enterprise  Co.,  53  Fed.  321;  Gillis  v. 
Downey,  85  Fed.  483;  Fulkerson  v.  Chisna  Co.,  122  Fed. 
782;  Duggan  v.  Davey,  4  Dak.  110;  see  Loney  v.  Scott, 
(Or.)  112  Pac.  172.  The  law  of  possession  is  that  the 
prior  location  and  occupation  carry  with  them  the 
prior  and  better  right.  Meydenbauer  v.  S'tevens,  78 
Fed.  787. 

2.  Forbes  v.  Gracey,  94  U.  S.  762.     Possessory  rights  in  min- 

ing claims  may  be  div.ested  by  sale  or  gift,  by  for- 
feiture or  by  abandonment.  Harkrader  v.  Carroll,  74 
Fed.  474.  In  actions  respecting  mining  claims,  proof 
must  be  admitted  of  the  customs,  usages,  or  regula- 
tions established  and  in  force  at  the  bar  or  diggings 
embracing  such  claim;  and  such  customs,  usages,  or 


§  20]  ADVERSE    SUIT.  33 

regulations,  when  not  in  conflict  with  the  laws  of  this 
state,  must  govern  the  decision  of  the  action.  C.  C.  P. 
§748;  see  Rev.  Stats.,  §2324;  Woodruff  v.  N.  Bloom- 
field  Co.,  18  Fed.  753. 

3.  Fulkerson  v.  Chisna  Co.,  ante;  Harris  v.  Kellogg,  117  Cal. 

484;  National  Co.  v.  Piccolo,  54  Wash.  617.  In  a  suit 
to  recover  possession  of  land,  a  separate  cause  of 
action  may  be  added  to  restrain  a  threatened  trespass 
and  commission  of  waste.  See  Waskey  v.  M'Naught, 
163  Fed.  927. 

4.  Harris  v.  Kellogg,  ante;    Contreras  v.  Merck,  131  Cal.   211. 

5.  Selma  Oil  Claim,  33  L.  D.  187;  Capital  No.  5  Claim,  34  L.  D. 

462;  see  Jones  v.  Pac.  Co.,  9  Ida.  186. 

6.  Nev.  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673;    Kjellman 

v.  Rogers,  106  Fed.  775;  see  Cosmos  Co.  v.  Gray  Eagle 
Co.,  104  Fed.  20;  Midland  Oil  Co.  v.  Turner,  179  Fed. 
74;  Childers  v.  Neely,  47  W.  Va.  70;  see,  generally, 
Loaiza  v.  Court,  85  Cal.  11.  For  form  of  appointment 
of  receiver,  see  Alexander  McKenzie,  180  U.  S.  536. 

§  20.  Adverse  Suit.  An  "adverse  suit"  is  one  in 
the  form  of  an  action  in  ejectment  or  one  to  quiet 
title  1  brought  in  a  court  of  competent  jurisdiction  2  in 
opposition  to  an  application  for  a  patent.3  It  arises 
only  from  claims  to  independent  and  conflicting  loca- 
tions.4 The  suit  or  intervention  must  be  based  upon 
an  adverse  claim.5 

This  suit  must  be  commenced  within  30  days  after 
the  filing  of  the  adverse  claim  6  and  be  prosecuted 
with  reasonable  diligence.7 

2.  JURISDICTION.     The  jurisdiction  of  the  court  is 
limited  to  the  area  in  conflict  8  and  the  burden  is  upon 
the  plaintiff  to  show  the  conflict  of  surface  area.9 

3.  PLEADING.     The  extent  of  the  allegations  in  the 
pleadings  as  well  as  the  extent  of  the  proof  required 
varies  in  the  different  states.10    Each  party  is  plaintiff 
and  actor  and  both  may  fail.11     Each  must  set  forth 
the  facts  upon  which  he  relies  to  show  that  his  is  the 
better  right.12 

It  is  essential  that  each  party  allege  and  prove,  if 
not  admitted,  that  he  is  a  citizen  of  the  United  States, 
or  has  declared  his  intention  to  become  such.13  It  is 
too  late,  however,  to  raise  the  question  for  the  first 
time  in  the  appellate  court.14 


34  ACTIONS.  [Ch.  3 

4.  TRIAL.     Each  party  must  prove  his  right  against 
his  adversary  as  well  as  against  the  United  States.15 
Neither  can  depend  upon  the  weakness  of  the  title  of 
the  other,16  as  the  question  is,  Has  the  plaintiff  the 
title  or  does  the  defendant  have  it,  or  do  neither 
have  it?17 

5.  DISMISSAL.     The  suit  may  on  motion    be    dis- 
missed upon  withdrawal  of  the  application  for  pat- 
ent 18  or  because  the  suit  is  not  prosecuted  with  rea- 
sonable diligence  to  final  judgment.19 

6.  NON-SUIT.     A  non-suit  may  be  granted.20 

7.  JUDGMENT.     The  judgment  only  determines  the 
right   of   possession   as  between  the   parties ; 21   that 
they  are  entitled  to  separate  and  different  portions  of 
the  claim  involved  22  or  that  they  are  neither  one  enti- 
tled to  judgment  23  or  to  proceed  with  the  application 
for  patent.24    All  other  questions  affecting  the  right  to 
patent  are  decided  by  the  land  department.25 

8.  FINAL  JUDGMENT.     The  judgment  is  not  final 
if  an  appeal  has  been  taken  or  a  motion  for  a  new 
trial  be  pending.26 

See  §  216,  post. 

1.  Perego  v.  Dodge,  163  U.  S.  160.     As  an  "adverse  suit"  in 

the  form  of  an  action  to  quiet  title  is  in  effect  a  suit 
in  equity  a  jury  trial  is  not  a  matter  of  right.  Butte 
Con.  Co.  v.  Barker,  35  Mont.  327.  The  term  "suit"  ap- 
plies to  any  proceeding  in  a  court  of  justice  by  which 
an  individual  pursues  that  remedy  which  the  law 
affords.  Kohl  v.  U.  S.,  91  U.  S'.  367. 

2.  Shoshone  Co.  v.  Rutter,  177  U.  S.  505. 

3.  Bunker  Hill  Co.  v.  Empire  State  Co.,  109  Fed.  538;  Upton 

v.  Sta.  Rita  Co.,  14  N.  M.  96. 

4.  Turner  v.  Sawyer,  150  U.  S.  578;  Creede  Co.  v.  Uinta  Co., 

196  U.  S.  337;  S'tevens  v.  Grand  Cent.  Co.,  133  Fed.  28; 
Thomas  v.  Elling,  25  L.  D.  495;  Grand  Canyon  Co.  v. 
Cameron,  35  L.  D.  495;  Providence  Co.  v.  Burke,  6  Ariz. 
323;  Champion  Co.  v.  Con.  Wyo.  Co.,  75  Cal.  78;  Doherty 
v.  Morris,  11  Colo.  12;  Davidson  v.  Fraser,  36  Colo.  1. 

5.  Perego  v.  Dodge,  ante;  Madison  Placer  Claim,  35  L.  D.  551; 

Mt  Blanc  Co.  v.  Debour,  61  Cal.  364;  Jefferson  v.  An- 
choria  Co.,  32  Colo.  176;  Healey  v.  Rupp,  37  Colo.  25; 
Murray  v.  Polglase,  23  Mont.  401;  Rose  v.  Richmond,  17 
Nev.  25;  Nesbitt  v.  Delamar  Co.,  24  Nev.  273;  Lock- 
hart  v.  Farrell,  31  Utah  155. 


§  20]  ADVERSE    SUIT.  35 

6.  Rev.    Stats.    §2326;    see    Steves    v.    Carson,    42    Fed.    821; 

Madison  Placer  Claim,  ante;  Deniss  v.  Sinnott,  35  L. 
D.  304;  see  also  Selma  Oil  Claim,  33  L.  D.  187. 

7.  Rev.   Stats.   §  2326.     The   question  of  diligence  is   one   for 

the  court,  not  the  land  department.  Rose  v.  Rich- 
mond, ante. 

8.  Mares  v.  Dillon,  30  Mont.  117;  see  Shoshone  Co.  v.  Rutter, 

ante. 

9.  Porter  v.  Tonopah  Co.,  133  Fed.  756;  see  Hoban  v.  Boyer, 

37  Colo.  185. 

10.  See   Bennett   v.    Harkrader,    158    U.    S.    441;    Lavagnino   v. 

Uhlig,  198  U.  S.  443;  Brown  v.  Gurney,  201  U.  S.  184; 
Tonopah  Co.  v.  Douglass,  123  Fed.  936;.  Providence 
Co.  v.  Marks,  7  Ariz.  74;  Phillips  v.  Smith,  11  Ariz. 
309;  Rough  v.  Simmons,  65  Cal.  227;  Holmes  v.  Sala- 
manca Co.,  5  Cal.  A.  659;  Contreras  v.  Merck,  131  Cal. 
211;  Jackson  v.  McFall,  36  Colo.  119;  Penn.  Co.  v. 
Bales,  18  Colo.  A.  108;  Rawlings  v.  Casey,  19  Colo.  A. 
152;  Hoban  v.  Boyer,  ante;  Cronin  v.  Bear  Creek  Co., 
3  Ida.  (Hasb.)  614;  Hahn  v.  James,  29  Mont.  1;  Hop- 
kins v.  Butte  Co.,  29  Mont.  390;  Woody  v.  Hines,  30 
Mont.  189;  Thornton  v.  Kaufman,  35  Mont.  181;  Deeny 
v.  Min.  Creek  Co.,  11  N.  M.  279;  Perego  v.  Dodge,  9 
Utah  3;  Iba  v.  Cent.  Ass'n,  5  Wyo.  355;  Sherlock  v. 
Leighton,  9  Wyo.  297. 

11.  Bay  State  Co.  v.  Brown,  21  Fed.  167;  Gird  v.  Cal.  Oil  Co., 

60  Fed.  531;  Anthony  v.  Jillson,  83  Cal.  296;  Cronin  v. 
Bear  Creek  Co.,  ante;  see  Smith  v.  Imperial  Co.,  11  Ariz. 
193;  Mt.  Blanc  Co.  v.  Debour,  ante;  Murray  v.  Polglase, 
ante;  Lily  Co.  v.  Kellogg,  27  Utah  111.  As  to  form  of 
bill  in  equity  in  a  suit  removed  from  a  state  court  to 
a  federal  court,  see  Durgan  v.  Redding,  103  Fed.  914. 

12.  See  note  11,  ante. 

13.  Allyn  v.  Schultz,  5  Ariz.  152;  Sherlock  v.  Leighton,  ante; 

see  Altoona  Co.  v.  Integral  Co.,  114  Cali.  100;  Strickley 
v.  Hill,  22  Utah,  257;  Stolp  v.  Treasury  Co.,  38  Wash. 
619. 

14.  O'Reilly  v.  Campbell,  116  U.  S.  418. 

15.  Brown  v.  Gurney,  ante. 

16.  Weed  v.  Snook,  144  Cal.  439;  Thomas  v.  Chisholm,  13  Colo. 

105.  The  defendant  may  show  that  the  plaintiff's  loca- 
tion was  made  upon  ground  embraced  within  a  prior, 
valid,  subsisting  location,  and  if  he  succeeds  in  the 
same  it  is  a  bar  to  plaintiff's  recovery.  Hoban  v. 
Boyer.  ante;  but  see  Farrell  v.  Lockhart,  210  U.  S.  242. 

17.  Iba  v.  Cent.  Ass'n,   ante.     It  is  absolutely  necessary  that 

a  party  •  claiming  the  right  to  possession  by  virtue 
of  a  mining  location  must  establish  such  right  by 
evidence  of  compliance  with  the  federal  and  state 
statutes  relating  to  the  location  and  holding  of  min- 
ing claims.  It  therefore  devolves  upon  each  of  the 
parties  litigant  to  prove  every  material  fact  necessary 
to  sustain  the  validity  of  his  contention.  Becker  v. 
Pugh,  9  Colo.  589;  Duncan  v.  Eagle  Rock  Co.,  48  Colo. 
569;  see  note  16,  ante. 

18.  Beals  v.  Cone,  27  Colo.  473. 

19.  Rose  v.  Richmond,  ante;  Davis  v.  McDonald,  33  L.  D.  641; 

see  Providence  Co.  v.  Marks,  ante.  When  such  a 
motion  is  made  the  court  will  consider  the  date  of  the 
filing  of  the  adverse  and  of  the  complaint.  Bernard 


36  ACTIONS.  [Ch.  3 

v.  Parmelee,  6  Gal.  A.  537;  but  the  court  cannot  pass 
upon  the  sufficiency  of  the  adverse  claim.  Waterhouse 
v.  Scott,  13  L.  D.  718;  see  Kannaugh  v.  Quartette  Co., 
16  Colo  341.  See  Richmond  Co.  v.  Rose,  114  U.  S.  576. 
See,  also,  Gypsum  Placer,  37  Li.  D.  484;  see,  generally, 
§  216,  note  2,  post. 

20.  McWilliams   v.   Winslow,    34   Colo.   341;   Lozar  v.   Neill,    37 

Mont.  287;  see  Iba  v.  Cent.  Ass'n,  ante. 

21.  Wolverton   v.   Nichols,    119   U.   S.   485;   Last   Chance   Co.   v. 

Tyler  Co.,  157  U.  S.  683;  Wheeler  v.  Smith,  23  L.  D.  395; 
Manning  v.  Strehlow,  11  Colo.  451;  Healey  v.  Rupp,  ante; 
Upton  v.  Sta.  Rita  Co.,  ante.  The  judgment  may  be 
entered  by  consent  of  the  parties.  Morrison's  Mg. 
Rights  (13th  ed.)  494;  but  see  Bay  State  Co.  v.  Brown, 
ante;  Becker  v.  Pugh,  17  Colo.  243;  see  note  17,  ante; 
see  Carrie  S.  Co.,  29  L.  D.  287. 

22.  Rev.  Stats.  §  2326.     The  judgment  must  designate  the  part, 

if  any,  of  the  area  in  conflict  that  may  belong  to  each 
of  the  adverse  claimants  and  the  complaint  must  sus- 
tain the  judgment.  Smith  v.  Imperial  Co.,  ante. 

23.  21   Stats.    505;   Wilson  v.    Freeman,    29   Mont.   470;   Helena 

Co.  v.  Baggaley,  34  Mont.  464;  see  Perego  v.  Dodge, 
ante;  Tonopah  Co.  v.  Tonopah  Co.,  125  Fed.  400;  Mares 
v.  Dillon,  ante;  Kirk  v.  Meldrum,  28  Colo.  453;  Anthony 
v.  Jillson,  ante.  The  claim  may  still,  however,  be  held 
under  possessory  title  as  long  as  there  may  be  a  com- 
pliance with  the  requirements  of  the  law.  McGowan  - 
v.  Alps  Co.,  23  L.  D.  113;  see  Brien  v.  Moffitt,  35  L.  D. 
32;  but  see  Lauman  v.  Hoofer,  37  Wash.  382. 

24.  Bay  State  Co.  v.  Brown,  ante;    Willett  v.  Baker,  133  Fed. 

937;  Brien  v.  Moffitt,  ante;  see  Newman  v.  Barnes,  23 
L.  D.  257. 

25.  Perego  Y-  Dodge  ante;    Apple  Blossom  Co.  v.  Cora  Lee,  14 

L.  D.  641;  Clipper  Co.,  33  L.  D.   660. 

26.  Doon  v.  Tesh,  131  Cal.  406. 


CHAPTEE  IV. 

DISPOSAL  OF  THE  PUBLIC  LANDS. 

§23.  Land  department  —  powers  —  judgment  unassailable  — 
judgment  not  conclusive — Board  of  Equitable  Adjudi- 
cation— character  of  entries  to  be  submitted — procedure 
— appeal — termination  of  jurisdiction. 

§  24.  Contests — grounds  for  action — procedure— notice  re- 
quired— purpose  of  notice — effect  of  notice — default — 
notice  after  appearance — compromise — specific  per- 
formance. 

§  25.  Hearings — character   of   land — presumption. 

§  26.  Testimony — rules — evidence — insufficient  evidence — bur- 
den of  proof. 

§  27.  Result  of  hearing — segregation  survey — judgment  not 
equivalent  to  patent — subsequent  legal  proceeding's. 

§  28.  State  lands — when  title  passes — when  closed  to  the 
prospector — rights  on  state  patented  land— land  de- 
partment— register  of  state  land  office — contests — • 
pleading — protestant — effect  of  judgment — payment  for 


§  23]  LAND  DEPARTMENT.  37 

land — statute  of  limitations — recent  Californian  legis- 
lation— school  lands  withdrawn  from  sale. 

§  28a.  Conservation. 

§  29.  Railroad  lands — classification  of  land — inconclusiveness 
of  classification — subsequent  discovery  of  mineral — re- 
jection of  application  for  patent — land  department. 

§  23.  Land  Department.  The  Land  Department 
of  the  United  States,  including  in  that  term  the  Sec- 
retary of  the  Interior,  the  Commissioner  of  the  Gen- 
eral Land  Office  and  their  subordinate  officers,  con- 
stitutes a  special  tribunal  vested  with  the  judicial 
power  to  hear  and  determine  the  claims  of  all  parties 
to  the  public  lands  and  authorized  to  dispose  of  and 
to  execute  its  judgments  by  conveyance  to  the  parties 
entitled  to  them  1  according  to  rules  and  regulations 
promulgated  by  it  under  the  provisions  of  law,2  re- 
garding the  disposition  of  the  public  domain. 

2.  POWERS.     Necessarily,   therefore,   it  must   con- 
sider and  pass  upon  the  qualifications  of  the  appli- 
cant, the  acts  he  has  performed  to  secure  the  title,  the 
nature  of  the  land  and  whether  it  is  open  for  sale. 

3.  JUDGMENT  UNASSAILABLE.     Its  judgment  upon 
these  matters  is  unassailable  except  by  direct  proceed- 
ings for  its  annulment    or    limitation.3     The  courts 
have  no  revisory  power  over  the  decision^  of  the  land 
department  upon  questions  of  fact.4 

4.  JUDGMENT  NOT  CONCLUSIVE.     Its  decisions  are 
open  to  re-litigation  in  the  courts  on  the  ground  of  its 
want  of  jurisdiction  in  the  case,5  or  that  it  miscon- 
strued the  law,6  or  in  cases  of  fraud  7  (when  extrinsic 
or  collateral  and  do  not  consist  of  perjury  or  "false 
proofs"),8  inadvertence,  mistake,9  etc.,  which  permit 
any  determination  to  be  re-examined.10 

5.  BOARD     OF     EQUITABLE    ADJUDICATION.      This 
board  consists  of  the  Secretary  of  the  Interior  and  the 
Attorney-General.11 

6.  CHARACTER  OF  ENTRIES  TO  BE  SUBMITTED.     The 
entries  to  be  submitted  to  this  board  are  only  those 
where  the  law  has  been  substantially  complied  with 


38  DISPOSAL  OF  THE   PUBLIC   LANDS.  [Ch.  4 

and  the  error  and  informality  therein  arose  from 
ignorance,  accident  or  mistake,  which  can  satisfactor- 
ily be  explained.12 

7.  PROCEDURE.     All  proceedings  in  relation  to  the 
disposal  of  the  public  lands  must  be  initiated  in  the 
proper  district  land  office,  and  all  papers  on  appeal 
must  be  transmitted  through  that  office.13 

8.  APPEAL.     An  appeal  lies  from  the  decision  of 
the  officers  of  the  local  land  office  to  the  Commissioner 
of  Ihe  General  Land  Office  and  from  him  to  the  Sec- 
retary of  the  Interior.14 

9.  TERMINATION  OF  JURISDICTION.     The    jurisdic- 
tion of  the  land  department  over  the  land  and  over 
the  title  which  it  has  conveyed  ceases  upon  the  actual 
issuance  of  the  patent;15  that  is,  its  due  issuance  and 
recordation,  not    necessarily  accompanied    by  actual 
delivery.16 

1.  Rev.  Stats.  §§441,  453,  2478;  U.  S.  v.  Winona  Co.,   67  Fed/ 

948;  see  Knight  v.  U.  S.  Land  Ass'n,  142  U.  S.  161;  Law- 
rence v.  Potter,  22  Wash.  32.  The  "subordinate  offi- 
cers" are  the  respective  U.  S.  surveyors  general — Cra- 
gin  v.  Powell,  128  U.  S.  691 — and  the  registers  and  re- 
ceivers of  the  several  local  land  offices — Rev.  Stats. 
§§  2234-2237. 

2.  Rev.  Stats.  §§441,  453,  2478;  Boske  v.  Comingore,  177  U.  S. 

459;  Cosmos  Co.  v.  Gray  Eagle  Co.,  190  U.  S.  301; 
Leonard  iv.  'Lennox,  181  Fed.  760;  Gage  v.  Gunther, 
136  Cal.  338;  Clyde  v.  Cummings,  35  Utah  461;  see  Gar- 
field  v.  Goldsby,  211  U.  S.  249;  Anchor  v.  Howe,  50  Fed. 
366.  Courts  take  judicial  notice  of  the  regulations  of 
the  land  department.  Leonard  v.  Lennox,  ante.  When 
a  rule  is  established  in  the  land  department  it  will  not 
be  overthrown  or  ignored  by  the  courts  unless  they 
are  clearly  convinced  that  it  is  wrong  or  tends  to  con- 
fusion and  conflict  of  claims.  Holt  v.  Murphy,  207 
U.  S.  407. 

3.  Steel  v.  St..  Louis  Co.,  106  U.  S.  447;  Burfenning  v.  Chicago 

Co.,  163  U.  S.  321;  Cosmos  Co.  v.  Gray  Eagle  Co.,  ante; 
Grand  Canyon  Co.  v.  Cameron,  36  L.  D.  66. 

4.  Jefford   v.   Hines,    2   Ariz.    162.      It  would   lead  to   endless 

litigation  and  be  a  fruitful  source  of  evil  if  a  super- 
visory power  vested  in  the  courts  over  the  action  of 
the  land  department  on  mere  questions  of  fact  pre- 
sented for  their  examination.  Quinby  v.  Conlan,  104 
U.  S.  420;  Gage  v.  Gunther,  ante. 

5.  Burfenning  v.  Chicago  Co.,  ante. 

6.  Hawley   v.   Diller,    178   U.    S.   476;   Hoyt  v.   Weyerhaueser, 

161  Fed.  324;  So.  Cross  Co.  v.  Sexton,  147  Cal.  758. 

7.  U.  S'.  v.   Iron  Co.,   128  U.   S.   673;  Whitcomb  v.   White,   214 


§24]  CONTESTS.  39 

U.  S.  15:  James  v.  Germania  Co.,  107  Fed.  597;  LeMar- 
chal  v.  Tegarden,  175  Fed.  682. 

8.  U.  S.  v.  Atherton,  102  U.  S.  372;  U.  S.  v.  White,  17  Fed.  561; 

U.  S.  v.  Minor,  26  Fed.  672;  Kennedy  v.  Dickey,  34  Mont. 
205;  Cagle  v.  Dunham,  14  Okla.  610;  see  Cragie  v. 
Roberts,  6  Cal.  A.  309. 

9.  Germania  Iron  Co.  v.  U.  S.,  165  U.  S.  379. 

10.  U.  S.  v.  Iron  Co.,  ante;  McCormick  v.  Hayes,  159  U.  S.  332; 

Germania  Iron  Co.  v.  U.  S.,  ante;  Hawley  v.  Diller, 
ante;  James  v.  Germania  Iron  Co.,  ante;  Thallman  v. 
Thomas,  111  Fed.  277. 

11.  Rev.  Stats.  §2451;  Hawley  v.  Diller,  ante. 

12.  Rev.  Stats.  §§2450-2457;  Crosby  Claims,  35  L.  D.   434;  see 

Regulations,  39  L.  D.  320. 

13.  Rules  of  Practice,  4  L.  D.  37.     Id.,  39  L.  D.  395. 

14.  Rev.  Stats.  §§453-2478;  Rules  of  Practice,  ante;    see  Shep- 

ley  v.  Cowan,  91  U.  S.  330;  Emblen  Co.  v.  Lincoln  Land 
Co.,  102  Fed.  559.  An  order  for  hearing  is  discretion- 
ary and  interlocutory  and  is  not  appealable.  Amer- 
ican Co.,  39  L.  D.  299. 

15.  Moore  v.   Robbins,   96  U.   S.   530;   see  U.   S.  v.  Rumsey,   22 

L.  D.  101;  Baldwin  Co.  v.  Quinn,  28  L.  D.  307. 

16.  U.  S.  v.  Schurz,  102  U.  S.  378;  U.  S.  v.  Laam,  149  Fed.  581. 

§  24.  Contests.  The  land  department  may,  upon 
its  own  motion,  or  upon  the  initiation  of  a  contest  by 
any  person  seeking  to  acquire  title  to,  or  claiming  any 
interest  in,  the  land  involved,  against  a  party  to  any 
entry,  filing,  or  other  claim  under  laws  of  Congress 
relating  to  the  public  lands,  because  of  priority  of 
claim,  or  for  any  sufficient  cause  affecting  the  legality 
or  validity  of  the  claim,  not  shown  by  the  records  of 
the  land  department ;  or  upon  the  filing  of  a  corrobo- 
rated protest  by  any  other  party,  or  upon  the  protest 
or  report  of  a  special  agent  of  the  government  order  a 
hearing  for  any  sufficient  cause  affecting  the  validity 
of  the  applicant's  claim,1  and  thereupon  take  such 
action  as  may  be  appropriate  and  necessary  to  enforce 
its  jurisdiction  and  preserve  the  rights  and  interests 
of  the  public.2 

2.  GROUNDS  FOR  ACTION.  The  grounds  for  such 
action  may  be  to  determine  the  character  of  the  land 
embraced  in  the  claim.3  That  the  claim  is  merely  col- 
orable and  is  used  to  cloak  acts  subversive  of  the  law 
as,  a  patent  that  is  sought  for  land  under  the  mining 
law  for  purposes  or  uses  foreign  to  those  of  mining.4 


40  DISPOSAL   OF   THE   PUBLIC   LANDS.  [Ch.  4 

That  the  applicant  for  patent  has  failed  to  comply 
with  the  law  in  any  manner  essential  to  a  valid  entry  5 
or  that  a  private  claim  is  inconsistent  with  some  pub- 
lic use  or  purpose  to  which  the  land  may  be  devoted 
pursuant  to  law.6 

3.  PROCEDURE.     An   adverse   claim   is   determined 
only  by  the  courts;   proceedings  upon  either  a  contest 
or  a  protest  are  subject  to  the  Eules  of  Practice,  con- 
fined to  the  land  department,  and  determined  therein.7 

4.  NOTICE    REQUIRED.       Applicants     for     patent, 
whether  mineral  or  agricultural,  are  required  to  pub- 
lish, and  in  some  instances  to  post,  notice  of  their 
application.8 

5.  PURPOSE  OF  NOTICE.    The  purpose  of  the  notice 
is  to  afford  opportunity  to  any  person  having  a  claim 
against  the  property  to  appear  in  the  local  land  office 
and  contest  the  applicant's  right  to  a  patent.9 

6.  EFFECT  OF  NOTICE.     In  an  application  for  a ' 
mineral  patent,  at  least,  the  published  notice  is  deem- 
ed to  be  equivalent  to  a  summons  in  a  judicial  pro- 
ceeding.10 

7.  DEFAULT.     Failure  to  appear  and  contest  the 
application  precludes  the  adverse  claimant's  rights,11 
except  those  which  a  court  of  equity  might  allow  to 
be  urged  against  a  judgment  at  law.12 

8.  NOTICE  AFTER  APPEARANCE.     The  right  to  per- 
sonal notice  of  all  proceedings  in  the  land  department 
is  dependent  upon  having  made  appearance    in    the 
particular  proceeding.13 

9.  COMPROMISE.     Where  there  is  a  bona  fide  con- 
test between  a  mineral  claimant  and  an  agricultural 
claimant  for  the  same  land  an  amicable  adjustment 
of  the  difficulty  by  a  division  of  the  land  between 
them  may  be  made.    Patent  may  issue  to  either  claim- 
ant according  to  the  classification  of  the  land  by  the 
land  department  and  subsequent  transfer  may  then 
be  made  by  the  patentee  to  the  other  claimant.14 


§24]  CONTESTS.  41 

10.  SPECIFIC  PERFORMANCE.  The  specific  perform- 
ance of  such  a  contract  will  be  enforced  by  the 
courts.15 

1.  Jurisdiction,  35  L.  D.  565;  Rule  3  of  Practice;  4  L.  D.  37; 

Rule  1  of  Practice,  39  L.  D.  395;  see  Instructions,  21 
L.  D.  367;  H.  H.  Yard,  38  L.  D.  59;  Charles  F.  White- 
head,  38  L.  D.  144;  Thomas  B.  Walker,  39  L.  D. 
426.  A  protest  should  set  forth  all  material  and  issu- 
able  facts  with  sufficient  particularity  to  apprise  the 
applicant  of  the  definite  nature  of  the  case  and  en- 
able him  to  defend  without  danger  of  surprise  by  any 
fundamental  question.  A  protest  by  a  mineral  claim- 
ant based  upon  the  alleged  mineral  character  of  the 
land  embraced  in  an  application  for  agricultural  land 
should  set  forth  the  amount  and  kind  of  mineral  that 
has  been  taken  from  the  land;  whether  any  assays 
thereof  have  been  made,  and  if  so  the  result  thereof, 
the  character  and  value  of  the  mining  improvements, 
if  any,  that  have  been  placed  upon  the  property  as 
well  as  any  other  material  matter  upon .  which  the 
respective  rights  of  the  parties  may  be  determined. 
Yard  v.  Cook,  37  L.  D.  401. 

2.  U.  S.  v.  Smith,  181  Fed.  545;    Jurisdiction,  ante.     The  re- 

ports of  special  agents  of  the  government  are  confi- 
dential and  privileged  communications  and  cannot  be 
demanded  as  a  matter  of  right  by  the  parties  in  in- 
terest and  will  not  be  furnished  except  upon  authority 
of  the  Secretary  of  the  Interior.  Clark,  Prentiss  & 
Clark,  38  L.  D.  464.  For  an  outline  of  the  proceedings 
upon  the  report  of  a  special  agent,  see  John  C.  Miller, 
28  L.  D.  45.  The  question  of  discovery  raises  an 
issue  generally  to  be  tried  out  in  an  adverse  suit  but 
where  it  is  charged  in  a  protest  that  no  discovery 
within  the  limits  of  the  claim  was  made  at  or  prior 
to  the  beginning  of  the  period  of  notice  of  application 
for  patent  the  land  department  will  take  jurisdiction 
to  determine  that  question.  This  upon  the  ground  that 
the  allegation,  if  true,  would  disclose  the  absence  of 
a  seasonable  and  essential  basis  for  a  judgment  in 
favor  of  the  applicant  OP  the  adverse  claimant.  Rupp 
v.  Healey,  38  L.  D.  387. 

3.  Barden  v.  N.  P.  R.  Co.,  154  U.  S.  288;  Coleman  v.  McKenzie, 

28  L.  D.  348;  H.  H.  Yard,  ante;  American  Co.,  39  L.  D. 
299;  Standard  Co.  v.  Habishaw,  132  Gal.  115. 

4.  Jurisdiction,   ante;   Grand   Canyon   Co.   v.   Cameron,    36   L. 

D.  66. 

5.  Rev.   Stats.  §  2325. 

6.  Jurisdiction,   ante;     see  §  213-18,   §  215-2. 

7.  Wight  v.  Dubois,  21  Fed.   693;  Fred  A.  Williams,   17  L,.  D. 

282;  Lake  Superior  Co.  v.  Patterson,  30  L.  D.  160. 

8.  Id.;  Rev.  Stats.  §2325.     The  several  laws  and  regulations 

providing  for  and  requiring  publication  of  notice  in 
relation  to  entries  of  and  claims  to  public  lands  are 
collated  in  38  L.  D.  136. 

9.  Kerns  v.  Lee,  142  Fed.  985. 

10.  Wight  v.  Dubois,  ante;  Jefferson  v.  Anchoria  Co.,  32  Colo. 
176. 


42  DISPOSAL,  OF   THE    PUBLIC   LANDS.  [Ch.  4 

11.  Kerns  v.  Lee,  ante;    Richards  v.  Wolfing,  98  Cal.  195. 

12.  Golden   Reward   Co.   v.   Buxton,   79   Fed.    868;   see   German 

Ins.  Co.  v.  Hayden,  21  Colo.  127;  So.  End  Co.  v.  Tinney, 
.  22  Nev.  19.  Where  due  notice  is  given  the  parties  to  a 
controversy  in  the  land  department,  and  they  appear 
therein  with  their  witnesses,  and  are  given  a  full  and 
fair  hearing,  and  submit  their  cause  to  the  depart- 
ment for  final  decision,  courts  of  equity  will  not  inter- 
vene to  set  aside  such  decision,  upon  an  allegation  in 
a  petition  or  bill  that  perjury  was  committed  by  the 
parties  or  their  witnesses  in  the  course  of  the  trial. 
Cagle  v.  Dunham,  14  Okla.  610. 

13.  .N.  P.  R.  Co.  v.  Cannon,  54  Fed.  252;  see  Rules  of  Practice, 

ante;  Lake  Superior  Co.  v.  Patterson,   ante. 

14.  Murray  v.  White,  42  Mont.  423;  see  St.  Louis  Co.  v.  Mont. 
•     Co.,  171  U.  S.  650. 

15.  Id. 

§  25.  Hearings.  Hearings  are  governed  by  the 
Eules  of  Practice  promulgated  by  the  land  depart- 
ment.1 

2.  CHARACTER  OF  LAND.     Hearings  to  determine 
the  character  of  lands  are  practically  of  two  kinds, 
viz. : 

(1)  Lands  returned  as  mineral  by  the  Surveyor- 
General. 

(2)  Lands  returned  as  agricultural  and  alleged  to 
be  mineral  in  character.2 

3.  PRESUMPTION.     Public    land    returned  by  the 
Survey  or- General  as  mineral  in  character  is  withheld 
as  agricultural  land  until    the    presumption  arising 
from  such  return  is  overcome  by  testimony  in  the 
manner  prescribed  by  the  land  department.3 

1.  Min.  Reg.  par.   99;   Rules   of  Practice,   4  L.  D.   37.     Id.,   39 

L.  D.  395. 

2.  Min.  Reg.  par.  101.     That  one  person  in  perfect  good  faith 

may  assert  a  mineral  claim  for  a  particular  parcel  of 
public  land,  and  another  person,  equally  in  good  faith, 
may  assert  an  agricultural  claim  to  the  same  ground 
is  beyond  question.  The  same  land  may  be  valuable 
for  both  mining  and  agricultural  purposes.  In  such 
circumstances  the  controversy  is  settled  by  the  land, 
department  determining  whether  the  land,  in  whole  or 
in  part,  is  more  valuable  for  one  purpose  than  an- 
other. Murray  v.  White,  42  Mont.  423. 

3.  Min.  Reg.,  par.  100;  see  Kinkade  v.  Cal.,  39  L.  D.  491;  see 

Lindley  on  Mines  (2d  ed.),  §§  94,  98,  207. 


§  26]  TESTIMONY.  43 

§  26.  Testimony.  At  hearings  to  determine  the 
character  of  land  the  testimony  is  directed  to  both 
the  mineral  and  the  agricultural  character  of  the 
land.1 

2.  RULES.     The  proceedings  are  conducted  under 
rules  prescribed  by  the  land  department  as  to  the 
nature  of  the  testimony  required.2 

3.  EVIDENCE.     The  proof  of  the  mineral  claimant 
must  be  specific,  based  upon  the  production  of  min- 
eral at  a  profit.3 

4.  INSUFFICIENT  EVIDENCE.     It  is  insufficient  for 
the  mineral  claimant  to  show  the  existence  of  a  mere 
location  4  or  a  discovery  that  might  be  sufficient  to 
sustain  a  location  in  the  first  instance.5 

5.  BURDEN  OF  PROOF.     The  burden    of    proof    is 
upon  the  person  who  asserts  the  mineral  character  of 
the  ground  in  dispute  6  or  has  the  burden  of  proof 
cast  upon  him  by  order  of  the  land  department.7 

1.  Min.  Reg.  pars.  105,  106,  107.     The  question  of  the  charac- 

ter of  land  is  always  one  of  fact.  Evidence  of  the 
actual  use  to  which  it  has  been  placed  by  those  who 
occupy  it  and  make  it  a  means  of  livelihood  is  not 
conclusive  evidence  but  tends  to  establish  its  character 
and  is  relevant  and  material  for  that  purpose.  Lynch 
v.  U.  S.,  138  Fed.  535. 

2.  Min.  Reg1,  ante. 

3.  Dughi  v.  Harkins,   2  L..  D.   721,   cited  approvingly  in  U.  S. 

v.  C.  P.  R.  Co.,  98  Fed.  874;  see  U.  S.  v.  Iron  Co.,  128 
U.  S.  673;  Davis  v.  .Weibbold,  139  U.  S.  507;  Royal  K. 
Placer,  13  L.  D.  86;  Bpophy  v.  O'Hare,  34  L.  D.  596; 
Alford  v.  Barnum,  45  Cal.  482;  Merrill  v.  •  Dixon,  15 
Nev.  407;  Bay  v.  Oklahoma  Co.,  13  Okla.  425.  Lands 
are  not  reserved  from  entry  under  the  land  laws  simply 
because  some  one  is  foolish  or  visionary  enough  to 
claim  or  work  some  portion  of  them  as  mineral  ground 
without  reference  to  whether  it  would  pay  to  work  or 
not.  U.  S.  v.  Reed,  28  Fed.  482;  Ferrell  v.  Hoge,  27 
L.  D.  129;  Hunt  v.  Steese,  75  Cal.  620;  see  also  Etling 
v.  Potter,  17  L.  D.  424;  Purtle  v.  Steffee,  31  L.  D.  400; 
Steele  v.  Tanana  Co.,  148  Fed.  678;  see  also  Chrisman 
v.  Miller,  197  U.  S.  313. 

4.  Sweeney  v.  N.  P.  R.  Co.,  20  L.  D.  394. 

5.  Brophy  v.  O'Hare,  ante. 

6.  Dughi   v.   Harkins,   ante;   Tinkham   v.   McCaffrey,    13   L.   D. 

517;  Winters  v.  Bliss,  14  L.  D.  59;  Aspen  Co.  v.  Wil- 
liams, 27  L.  D.  1. 

7.  Magruder  v.  O.  &  C.  R.  Co.,  28  L.  D.  174. 


44  DISPOSAL,   OF   THE    PUBLIC   LANDS.  [Ch.  4 

§  27.  Result  of  Hearing.  The  character  of  the 
land  is  conclusively  determined  by  the  judgment  in 
either  a  contest  or  protest  proceeding.1  It  may  be 
held  to  be  wholly  or  in  part  mineral  or  agricultural 
land. 

2.  SEGREGATION  SURVEY.  Where  it  is  held  to  be 
partly  of  each  class  a  segregation  survey  may  be  had, 
through  the  local  land  office,  on  application  made  by 
the  proper  party.2 

3*..  JUDGMENT  NOT  EQUIVALENT  TO  PATENT.  A 
judgment  in  favor  of  the  mineral  claimant  is  not 
equivalent  to  a  patent  for  the  land  embraced  therein.3 

4.  SUBSEQUENT  LEGAL  PROCEEDINGS.  After  the 
land  department  shall  have  disposed  of  the  questions 
within  its  jurisdiction  if  any  legal  right  of  either 
party  to  the  proceedings  has  been  invaded,  he  may 
seek  redress  in  the  courts.4 

1.  Casey  v.  Vassor,   50  Fed.  258;  see  Marquez  v.  Frisbie,   101 

U.  .S.    473. 

2.  Min.  Reg.  par.  108.     As  to  land  segregated  by  the  issuance 

of  a  mineral  patent  see  33  Stats.  545. 

3.  Min.  Reg.  par.   111. 

4.  Litchfield  v.  Reg.  &  Rec.,  76  U.  S.  575;    Kirwan  v.  Murphy, 

189  U.   S.   35. 

§  28.  State  Lands.  Congress  has  granted  to  cer- 
tain of  the  states  for  educational  purposes  and  for 
internal  improvements,  certain  parts  of  the  public 
domain  not  known  to  be  mineral  in  character  at  the 
time  of  the  grant  and  the  right  to  select  other  lands 
in  lieu  thereof,  if  mineral  in  character  or  if  covered 
by  a  prior  valid  subsisting  claim.1 

2.  WHEN  TITLE  PASSES.  Title  does  not  pass  to 
the  state  under  such  a  grant  until  the  land  is  surveyed 
and  the  survey  is  approved  2  if  the  grant  is  a  present 
one,3  or  until  the  land  is  selected  by  the  state  and  the 
selection  is  approved,  certified  to  or  "listed"  to  the 
state  by  the  land  department  of  the  United  States,4 


STATE  LANDS.  45 

which  is  equivalent  to  patent,  when  the  selection  is  of 
lieu  or  indemnity  land.5 

3.  WHEN     CLOSED    TO    THE    PROSPECTOR.     Land 
which  has  passed  to  the  state  by  grant  or  certification 
is  no  longer  open  to  exploration,  occupation  or  min- 
eral location.6 

4.  EIGHTS  ON  STATE  PATENTED  LAND.     Where  it 
happens  that  a  subsisting  mineral  location  is  covered 
by  a  non-mineral  patent  the  mineral  claimant,  in  order 
to  sustain  his  rights,  must  prove  the  greater  mineral 
value  than  agricultural  value  of  the  land  at  the  time 
the  patent  issued.7 

Discovery  of  mineral  subsequent  to  the  issuance  of 
a  non-mineral  patent  inures  to  the  benefit  of  the 
patentee.8 

5.  LAND    DEPARTMENT.      The    land  -  grant  -  aided 
states  maintain  land  departments  of  their  own  which 
are  not  a  part  of  the  land  department  of  the  United 
States.     This  because    a    state  may   administer   its 
public  lands  in  any  way  that  it  sees  fit,  so  long  as  it 
does  not  conflict  with  the  rights  guaranteed  by*  the 
Constitution  of  the  United  States.9 

6.  REGISTER  OF  STATE  LAND  OFFICE.     In  California 
the   state   surveyor-general   is   ex-officio   register   and 
the  assistant  deputy  surveyor-general  is  ex-officio  dep- 
uty register  of  the  state  land  office.10 

7.  CONTESTS.     If  the  question  involved  in  a  con- 
test is  as  to  the  survey  of 'state  lands,  or  one  purely 
of  fact,  etc.,  the  register  may  proceed  to  hear  and 
determine  the  same;    but  when,  in  his  judgment  a 
question  of  law  is  involved,  or  when  either  party  de- 
mands a  trial  in  the  state  courts  he  must  make  ail 
order  referring  the  contest  to  the  superior  court  of 
the  county  in  which  the  land  is  situated.11 

8.  PLEADING.     When  the  proceeding  is  referred  to 
a  court  for  determination  each  party  thereto  becomes 
an  actor  therein  12  and  whether  plaintiff,  defendant 


46  DISPOSAL  OF  THE   PUBLIC   LANDS.  [Ch.  4 

or  intervenor,13  he  must  state  in  his  pleadings  all  the 
facts  upon  which  he  relies  as  showing  his  right  to  be- 
come the  purchaser  and  the  steps  he  has  taken  to  avail 
himself  of  and  secure  his  right  to  make  the  pur- 
chase.14 The  facts  must  be  set  out  so  that  the  court 
can  discern  that  the  application  is  in  due  form  of 
law,  or  rather  that  it  complies  with  the  requirements 
of  the  law.15 

9.  PROTESTANT.     Where  a  party  merely  protests 
against  the  application    of    another    party,  he  must 
state  the  facts  constituting  the  grounds  therefor,  as, 
for  instance,  that  he  has  acquired  the  title  from  the 
United  States,  or  that  he  has  the  right  of  pre-emption, 
stating  the  facts  upon  which  his  right  is  based.16 

10.  EFFECT  OF  JUDGMENT.     Upon  filing  with  the 
surveyor-general  or  register,  as    the    case  may  be,  a 
copy  of  the  final  judgment  of  the  court,  that  officer 
must  approve  the  survey  or  location,  or  issue  the  cer- 
tificate of  purchase  or  other  evidence  of  title  in  accord-" 
ance  with  such  judgment.17 

11.  PAYMENT  FOR  LAND.     When  the  full  amount 
of  the  purchase  price  has  been  paid  the  purchaser 
becomes  vested  with  the  ownership  of  the  land  de- 
scribed in  the  certificate  of  purchase,  and  can  make 
the  same  disposition  of  the  land  as  could  any  other 
owner.    The  patent  is  but  evidence  of  his  title.18 

12.  STATUTE  OF  LIMITATIONS.    Contests  relating  to 
applications  to  purchase  state  school  lands  can  only 
be  brought  within  five  years  from  and  after  the  date 
on  which  the  certificate  of  purchase  may  have  been 
issued.19     No  suit  can  be  brought  upon  a  patent  or 
grant  from  the  state  of  California  after  ten  years 
from  its  date  20  unless  the  same  is  judicially  declared 
to  be  void,  in  which  case  the  suit  must  be  brought 
within  five  years  thereafter.21 

13.  RECENT  CALIFORNIAN  LEGISLATION.    Under  the 
provisions  of  a  recent  act  of  the  legislature  of  the  state 


§28]  STATE  LANDS.  47 

of  California  any  person  claiming  or  deraigning  title 
under  an  unrecorded  deed  or  patent  from  that  state 
is  authorized  to  bring  suit  to  quiet  title  against  the 
state  to  the  land  embraced  therein,  or  any  part  thereof, 
within  one  year  from  the  twenty- fourth  day  of  March, 
1911.22 

14.  SCHOOL  LANDS  WITHDRAWN  FROM  SALE. 
School  lands  (16th  and  36th  sections)  situated  within 
a  military,  Indian,  national  or  state  forest  reservation, 
national  park  or  national  monument  are  withdrawn 
from  sale  by  the  state.23 

1.  Ivanhoe  Co.  v.   Keystone  Co.,   102   U.   S.   167;   see  Bond  v. 

California,   31  L.   D.   34. 

2.  Heydenfeldt  v.  Daney  Co.,  93  U.  S.  634;  F.  A.  Hyde  &  Co., 

37  L.  D.  164;  Medley  v.  Robertson,  55  Cal.  396;  Clem- 
mons  v.  Gillette,  33  Mont.  321;  see  State  v.  Wright,  24 
L.  D.  54. 

3.  Johanson  v.  Washington,  190  U.  S.  179. 

4.  McCreery  v.  Haskell,  119  U.  S.  327. 

5.  Hendy  v.  Compton,  9  L.  D.  106. 

6.  Buena  Vista  Co.  v.  Tulare  Co.,  67  Fed.  226;  Rice  v.  State, 

24  L.  D.  14.  But  see  Cal.  Stats.  1897,  p.  438,  which 
provides  for  the  exploration  and  sale  of  mineral  lands 
within  the  grant  of  school  lands  to  the  state  in  con- 
formity with  the  provisions  of  the  mining  act.  See 
also  Cuttings  Com.  Laws  Nev.,  §§281-282;  Or.  Stats. 
1907,  p.  214. 

7.  Bonner  v.  Meikle,   82   Fed.    697;  McCormick  v.   Sutton,   97 

Cal.  373. 

8.  Deffebach   v.   Hawke,    115   U.   S.    392;   Davis   v.   Weibbold, 

139  U.  S.  507;  Ferry  v.  Street,  4  Utah  521. 

9.  Frellsen   &  Co.   v.   Crandell,   217   U.   S.   71;   see  Thomas  B. 

Walker,  39  L.  D.  426;    Kinkade  v.  Cal.,  39  L.  D.  491. 

10.  Pol.  C.  §§350-485. 

11.  Pol.    C.      §3414;    Danielwitz    v.    Temple,    55    Cal.    42;    see 

Polk  v.   Sleeper,    (Cal.)    112  Pac.  179. 

12.  Cadierque  v.  Duran,  ante. 

13.  Moran  v.  Bonynge,  157  Cal.  295. 

14.  Cadierque  v.  Duran,  ante. 

15.  Reese  v.  Thorburn,  78  Cal.  117. 

16.  Cadierque  v.  Duran,  ante. 

17.  Pol.  C.  §  3416. 

18.  Forestier  v.  Johnson,  12  Cal.  A.  Dec.  9. 

19.  Pol.  C.  §3499. 

20.  C.  C.  P.  §  315. 

21.  C.  C.  P.  §  317. 

22.  Cal.  Stats.   1911,  p.   466. 

23.  Pol.   C.,   §  3494.      (Amended   March   8,    1911.)      For   right  to 

sue  United  States  and  State  of  California  in  condemna- 
tion proceedings  see  C.  C.  P.,  §1240;  Pol.  C.,  §3498;  19 
L.  D.  24;  but,  as  to  United  States,  see  Carr  v.  U.  S.,  98 
U.  S.  433.  See  §  76a,  ante. 


48  DISPOSAL   OF  THE    PUBLIC   LANDS.  [Ch.  4 

§  28a.  Conservation.  By  legislative  enactment, 
taking  effect  April  8,  1911,  there  was  created  and  es- 
tablished in  California,  a  committee  to  be  known  as  the 
Conservation  Committee  of  the  State  of  California  the 
province  of  which  is  to  gather  data  and  information 
concerning  the  subjects  of  forestry,  water,  the  use  of 
water,  water  power,  electricity,  electrical  and  other 
power,  mines  and  mining,  mineral  and  other  lands, 
dredging,  reclamation  and  irrigation  and  for  revising, 
systematizing  and  reforming  the  laws  of  the  state 
upon,  concerning,  regarding  or  appertaining  to  said 
subjects.1 

1.   Cal.  Stats.   1911,  p.  822. 

§  29.  Railroad  Lands.  Land  grants  to  certain 
transcontinental  railroads  have  from  time  to  time 
been  made  by  Congress  upon  substantially  similar 
terms  and  conditions  as  to  certain  of  the  states  as  to 
the  character  of  the  land  within  the  limits  of  the 
grant;  coal  and  iron  deposits  therein,  however,  being 
excluded  from  the  operation  of  the  mining  laws.1 

2.  CLASSIFICATION  OF  LAND.     There  is  no  provision 
in  any  of  these  grants  for  the  demarcation  of  mineral 
lands  therein  except  that  the  land  within  the  grant 
to  the  N.  P.  R.  Co.  within  the  States  of  Montana  and 
Idaho  is  subject  to  examination  and  classification  by 
a  commission  appointed  under  an  act  of  Congress.2 

3.  INCONCLUSIVENESS  OF  CLASSIFICATION.     The  re- 
turn of  this  commission  as  to  the  character  of  land  is 
not  conclusive.3 

4.  SUBSEQUENT    DISCOVERY    OF    MINERAL.     After 
title  has  passed  to  a  railroad  company  no  mineral 
rights  in  the  land  covered  thereby  can  be  initiated 
thereon  without  its  consent.4 

5.  REJECTION  OF  APPLICATION  FOR  PATENT.    Where 
it  appears  that  an  application  for  a  mineral  patent 
embraces  land  within  a  railroad  grant  the  application 


§  29]  RAILROAD   LANDS.  49 

will  be  rejected  by  the  local  land  officers.  The  appli- 
cant may  appeal  from  the  order  of  rejection  and  apply 
for  a  hearing  to  determine  the  character  of  the  land.5 
6.  LAND  DEPARTMENT.  Land-grant-aided  railroads 
usually  maintain  land  departments  in  order  to  facili- 
tate the  disposal  of  such  lands.  Such  departments 
are,  of  course,  unconnected  with  the  United  States 
land  department. 

1.  12  Stats.  489;  12  Stats.  492;  13  Stats.  367;  13  S'tats.  567;  14 

Stats.  239;  see  O.  &  C.  R.  R.  Co.  v.  Puckett,  39  L.  D. 
169. 

2.  28   Stats.   683. 

3.  Lynch  v.  U.  S.,  138  Fed.   535;  Beaudette  v.  N.  P.  R.  Co.,   29 

L.  D.  248;  see  State  v.  N.  P.  R.  Co.,  37  L.  D.  95. 

4.  C.  P.  R.  Co.  v.  De  Rego,   39  L.  D.   288;  Traphagen  v.  Kirk, 

30  Mont.  562;    see  Weyerhaeuser  v.  Hoyt,  219  U.  S.  380. 

5.  Min.  Reg.   par.   44;  see  Benjamin  v.   S.  &  C.  P.  R.  Cos.,   21 

L.  D.  387;  see  Loney  v.  Scott,   (Or.)   112  Pac.  172. 


CHAPTER  V. 

SURVEYS. 

§  35.  Public  land  surveys — province  of  land  department — 
questions  of  fact — duty  of  surveyor — division  and  num- 
bering of  the  public  lands — meander  lines — high  water 
mark — recent  Californian  legislation. 

§  36.  Official  surveys — lode  claims — placer  claims — connecting 
line — reference  to  connecting  line — maps — map  must 
be  supported  by  evidence — testimony  of  surveyor — 
fabricated  survey — map  not  proof  of  lode. 

§  37.   Segregation  survey — when  ordered — township  records. 

§  38.  Adverse  claim  survey^ — what  plat  of  must  show — when 
survey  not  necessary — not  made  by  surveyor-general. 

§  39.  Appeal. 

§  40.  Surveys  under  state  laws — surface  survey — record — 
evidence — underground  survey — service  of  order. 

§  35.  Public  Land  Surveys.  There  are  two  classes 
of  surveys,  public  and  official.  The  first  refers  to  the 
system  of  public-land  surveys  and  the  second  to  the 
survey  made  in  an  application  for  patent  for  a  mining 
claim.  Both  classes  of  surveys  are  made  by  or  under 
the  direction  of  the  proper  surveyor-general. 

2.  PROVINCE  OF  LAND  DEPARTMENT.  It  is  the 
peculiar  province  of  the  land  department  to  consider 


50  SURVEYS.  [Ch.  5 

and  determine  what  lands  have  been  surveyed,  what 
are  to  be  surveyed,  what  have  been  disposed  of,  what 
remains  to  be  disposed  of,  and  what  are  reserved.1 
Its  action,  when  within  the  scope  of  its  authority,  is 
unassailable  in  the  courts,  except  in  direct  proceed- 
ings.2 

3.  QUESTIONS    OF    FACT.      The    land    department 
may  make  and  correct  surveys  of  either  class,3  and 
while  the  boundaries  of  a  surveyed  tract  may  not  be 
open  to  dispute,  yet  where  the  lines  run  by  such  a 
survey  lie  on  the  ground,  and  whether  any  particular 
tract  is  on  one  side  or  the  other  of  that  line  are  ques- 
tions of  fact  which  are  open  to  inquiry  in  the  courts.4 

4.  DUTY  OF  SURVEYOR.    Every  surveyor  when  mak- 
ing a  public  survey  is  required  to  note  in  his  field 
book  the  true  situation  of  all  mines,  salt  licks,  salt 
springs  and  mill  seats  which  come  to  his  knowledge, 
all  water  courses  over  which  the  line  he  runs  may  pass, 
and  also  the  quality  of  the  land.5    The  report  of  the 
surveyor  in  this  regard  is  the  basis  of  the  surveyor- 
general's  return  as  to  the  character  of  the  land.    This 
classification  of  the  land  is  not  conclusive.6 

5.  DIVISION  AND  NUMBERING  OF  THE  PUBLIC  LANDS. 
By  the  public  surveys  the  public  lands  are,  generally, 
divided  into  townships  of  6  miles  square.     The  cor- 
ners of  the  townships    are    marked  with  progressive 
numbers  from  the  beginning.     Each  distance    of    a 
mile  between  such  corners  is  distinctly  marked  with 
marks  different  from  those  of  the  corners.7    No  marks 
are  required  by  law  to  be  placed  at  the  quarter  sec- 
tions.   Interior  lines  of  sections  are  protracted  by  the 
United  States  Surveyor-General.8 

The  sections  are  1  mile  square,  contain  640  acres, 
and  are  numbered,  respectively,  beginning  with  the' 
number  "1,"  in  the  north-east  section  of  the  township, 
thence  running  to  the  north-west  section  thereof, 
which  is  numbered  "6,"  thence  west  and  east,  alter- 


§  35]  PUBLIC    LAND    SURVEYS.  51 

nately  through  the  township,  with  progressive  numbers 
to  the  southeast  section  of  the  township,  which  is  num- 
bered "36."  9 

6.  MEANDER  LINES.    A  meander  line  is  an  irregular 
line  having  no  certain  significance.10     Such  lines  are 
not  run  as  boundaries  of  a  tract,  but  for  the  purpose 
of  defining  the  sinuosities  of  the  banks  of  a  stream 
or  lake  upon  which  the  tract  may  border,  and  also 
as    a   means    of   ascertaining   the    quantity   of   land 
in  the  tract  subject  to  sale  and  which  is  to  be  paid 
for  by  the  purchaser.11     A  proprietor  of  lands  bor- 
dering on  a  stream,  lake  or  pond,  not  navigable  unless 
restricted  by  the  terms  of  his  grant,  holds  to  the  center 
of  such  stream,  pond  or  lake.12 

7.  HIGH  WATER  MARK.     Land    below  high-water 
mark  of  a  meandered  stream  should  not  be  included 
in  the  survey  of  a  mining  claim.13 

8.  RECENT  CALIFORNIAN  LEGISLATION.    Under  a  re- 
cent Act  of  the  legislature  of  the  state  of  California 
the  public  lands  of  that  state  which  are  embraced 
within  the  original  meander  lines  of  streams  and  lakes 
the  waters  of  which  contain  minerals  in  commercial 
quantities    are   withdrawn   from   selection    and    sale. 
Such  lands  may,  however,  be  leased  from  the  state  at 
the  rate  of  $2.50  an  acre  and  a  royalty  on  the  mineral 
extracted.14 

1.  Kirwan  v.  Murphy,   189 '  U.   S.   35;  see  Harvey  M..  La  Fol- 

lette,  26  L.  D.  453. 

2.  Stoneroad  v.  Stoneroad,  158  U.   S.   240;  Murphy  v.  Tanner, 

176  Fed.  537;  Brown  v.  Yarraham  Co.,  3  Cal.  A.  474. 

3.  Cragin  v.  Powell,  128  U.  S.  691;  see  Gauthier  v.  Morrison, 

(Wash.)    114  Pac.   501. 

4.  Russell  v.  Maxwell   Land  Grant  Co.,   158  U.  S.   253. 

5.  Rev.   Stats.   §2395;   see   Barden  v.   N.  P.   R.   Co.,   154   U.   S. 

288;    Winscott  v.  N.  P.  R.  Co.,  17  L.  D.  274. 

6.  Barden  v.  N.  P.  R.  Co.,  ante;  Cole  v.  Markley,  2  L.  D.  847; 

Winscott  v.  N.  P.  R.  Co.,  ante;  Kinkade  v.  Cal.,  39  L. 
D.  491;  see  Benjamin  v.  S.  &  C.  R.  Cos.,  21  L.  D.  387. 

7.  Rev.   Stats.  §2395;   Finch  v.  Ogden,   175  Fed.   20;   Johnson 

v.  Johnson,   14  Ida.   561. 

8.  Chapman  v.  Pollack,  70  Cal.  487.     The  smallest  subdivision 

except  under  the  placer  mining"  laws  is  a  tract  of  40 
acres — that  is,  a  tract  in  square  form  constituting  one 
quarter  of  a  quarter  section — except  where,  owing  to 


52  SURVEYS.  [Ch.  5 

certain  peculiar  local  conditions  a  tract  irregular  in 
shape  and  dimensions  is  noted  upon  the  plat  of  survey 
as  a  legal  subdivision.  Wm.  F.  Roedde,  39  L.  D.  365; 
see  §  211,  note  9,  post. 

9.  .Rev.  Stats.,  §§2395,  2396,  2397.  For  a  synopsis  of  acts  of 
Congress  in  regard  to  the  surveying  of  the  public 
lands,  see  Circular,  38  L.  D.  1. 

10.  Niles  v.  Cedar  Point  Club,  175  U.  S.  300;  Kean  v.  Calumet 

Co.,   190   U.   S.   452. 

11.  St.  Paul  R.  Co.  v.  Schurmeier,  74  U.  S.  272;  Restoration  of 

lost  corners,  etc.,  38  L.  D.  1;  Kirby  v.  Potter,  138  Cal. 
686. 

12.  St.   Paul  R.  Co.  v.  Schurmeier,  ante;  Home  v.  Smith,  159 

U.  S.  40;  Hardin  v.  Jordan,  140  U.  S.  371;  Kean  v. 
Calumet  Co.,  ante;  Amanda  Hines,  14  L.  D.  156;  Kirby 
v.  Potter,  ante;  Foss  v.  Johnstone,  (Cal.  A.)  110  Pac. 
294;  see  Lux  v.  Haggin,  69  Cal.  255.  The  law  of 
California,  with  respect  to  the  incidents  attaching  to 
land  bordering  upon  waters,  is  settled  by  section  830 
of  the  Civil  Code  as  follows: — 

Except  where  the  grant  under  which  the  land  is 
held  indicates  a  different  intent,  the  owner  of  the  up- 
land, when  it  borders  on  tide  water  takes  to  ordinary 
high-water  mark;  when  it  borders  upon  a  navigable 
lake  or  stream,  where  there  is  no  tide,  the  owner 
takes  to  the  edge  of  the  lake  or  stream,  at  low  water 
mark;  when  it  borders  upon  any  other  water,  the  own- 
er takes  to  the  middle  of  the  lake  or  stream.  See 
Packer  v.  Bird,  137  U.  S.  661. 

13.  Argillite  Co.,  29  L.  D.  585;  see  Victor  A.  Johnson,  33  L.  D.  * 

593. 

14.  Cal.  Stats.  1911,  p.  1154. 

§  36.     Official  Survey.     An  official  survey  is  one 
made  in  the  course  of  patent  proceedings.1 

2.  LODE  CLAIMS.     The  claimant  of  a  lode  claim  is 
not  compelled  art  any  time  to  follow  the  lines  of  the 
public  surveys.2 

3.  PLACER  CLAIMS.     A  placer  location  is  the  sub- 
ject  of  official   survey  when  laid   upon   unsurveyed 
land  or  is  a  fractional  part  of  an  irregularly-shaped 
surveyed  tract.3 

4.  CONNECTING  LINE.    Unless  good  cause  is  shown 
therefor  the   line   connecting  the   location  with   the 
public  survey  should  be  given  in  the  official  survey.4 

5.  REFERENCE  TO  CONNECTING  LINE.    A  failure  to 
incorporate  proper  reference  to  such  line  in  the  pub- 
lished notice  of  application   for  patent  renders  the 
application  defective,  and  proceedings  must  be  com- 
menced anew.5 


§37]  SEGREGATION  SURVEY.  53 

6.  MAPS.     A  map  in  itself  proves  nothing,  unless 
it  is  shown  by  competent  evidence  to  be  a  correct  rep- 
resentation of  the  relative  positions  of  the  objects  it 
purports  to  delineate.6 

7.  MAP  MUST  BE  SUPPORTED  BY  EVIDENCE.    In  the 
case  of  an  unpatented  mining  claim  a  map  purporting 
to  show  the  lines  of  the  location  is  of  no  probative 
value  unless  supported  by  the  evidence  of  some  one 
who  knows  the  position  of  the  monuments  which  define 
those  lines ;  for  it  is  by  the  location  monuments  alone 
that  their  beginning  and  direction  can  be  determined.7 

8.  TESTIMONY    OF    SURVEYOR.     A    surveyor    may 
properly  testify  as  to  the  correctness  of  a  plat  that  is 
made  by  him,  although  partly  copied  from  the  govern- 
ment survey  and  partly  made  from  his  own  observa- 
tion.8 

9.  FABRICATED    SURVEY.     A   map    based    upon    a 
fabricated  public  survey  may  be  referred  to  in  aid  of 
the  description  of  a  mining  claim.9 

10.  MAP  NOT  PROOF  OF  LODE.    The  marking  of  an 
ideal  lode  line  across  an  official  survey  and  diagram 
thereof  does  not  have  the  effect  of  putting  a  lode  into 
the  ground  if  there  is  no  vein  or  lode  there.     The 
facts  may  be  shown.10 

1.  Holmes  Placer,   29  L.  D.  368. 

2.  Rev.  Stats.  §§  2327-2331;  Del  Monte  Co.  v.  Last  Chance  Co., 

171  U.  S.  55. 

3.  Min.  Reg.  pars.  135-141;    Chicago  Placer,  34  L.  D.  9. 

4.  Min.   Reg1,   par.   138. 

5.  Henry  Wax,   29  L.  D.  592;  Alice  Lode,  30  L.  D.  481. 

6.  Daggett  v.  Yreka  Co.,  149  Cal.  357;  see  Blake  v.  Doherty, 

5  Wheat.  359;  U.  S.  v.  Mont.  Co.,  196  U.  S.  573;  Duncan 
v.  Eagle  Rock  Co.,  48  Colo.  569. 

7.  Daggett  v.   Yreka  Co.,   ante;   Duncan  v.   Eagle  Rock  Co., 

ante. 

8.  Tillotson  v.  Prichard,   60  Vt.   94. 

9.  Gird  v.  Cal.  Oil  Co.,   60  Fed.   531. 

10.   Con.  Wyo.  Co.  v.  Champion  Co.,  63  Fed.  540. 

§  37.  Segregation  Survey.  A  segregation  survey, 
as  the  term  is  used  in  mining  law,  means  a  survey 
which  is  expressly  made  for1  or  has  the  effect  of, 


54  SURVEYS.  [Ch.  5 

separating  mineral  from  agricultural  land.2  An  official 
survey  has,  but  not  always  conclusively,  the  same 
effect.3 

2.  WHEN  ORDERED.     A  segregation  survey  is  or- 
dered at  the  expense  of  the  proper  party.4 

Such  a  survey  may  be  ordered  upon  the  application 
and  at  the  expense  of  a  non-mineral  claimant  after 
the  approval  of  an  official  survey  which  is  not  fol- 
lowed by  further  patent  proceedings  thereon.  In  that 
event  such  claimant  must  establish  the  mineral  char- 
acter of  the  land  embraced  within  the  lines  of  the 
official  survey.5 

3.  TOWNSHIP  KECORDS.    The  segregation  of  a  min- 
ing claim  from  the  public  domain  does  not  appear 
upon  the  official  township  records  until  after  entry 
has  been  made  and  approved  for  patent.6 

1.  Min.  Reg.  par.  108;  Wm.  F.  Roedde.  39  L.  D.  365. 

2.  Rev.  Stats.  §  2331. 

3.  Rev.  Stats.  §2327;  Min.  Reg.  par.   37(c). 

4.  Min.  Reg.  par.   108. 

5.  Min.  Reg.  par.  37(c). 

6.  Min.  Reg.  par.  37 (a). 

§  38.  Adverse  Claim  Survey.  An  adverse  claim 
survey  is  one  made  in  support  of  an  adverse  claim 
filed  in  the  local  land  office  in  opposition  to  an  appli- 
cation for  patent  for  an  overlapping  mining  claim. 

2.  WHAT  PLAT  OF  MUST  SHOW.    The  plat  of  such 
a  survey  must  show  the  adverse  claimant's  entire  loca- 
tion, its  relative  situation  or  position  with  the  one 
against  which  he  claims,  and  the  extent  of  the  conflict. 

3.  WHEN  SURVEY  NOT  NECESSARY.    Neither  survey 
nor  plat  is  necessary  where  the  respective  locations 
are  described  by  legal  subdivisions.1 

4.  NOT  MADE  BY  SURVEYOR-GENERAL.     Unlike  the 
other   surveys   before   mentioned   this   survey   is  not 
made  by  or  under  the  direction  of  the  surveyor-gen- 
eral.2 

1.  Rev.  Stats.  §2326;  Min.  Reg.  par.  82. 

2.  Min.  Reg.  par.  82;  Anchor  v.  Howe,  50  Fed.  366. 


§  40]  SURVEYS  UNDER  STATE  LAW.  55 

§  39.  Appeal.  An  appeal  lies  from  the  ruling  of 
the  surveyor-general  in  relation  to  a  survey  or  its 
amendment,  in  like  manner  as  in  other  land  office  mat- 
ters.1 

1.   Emma  Lode,  7  L.  D.  169. 

§  40.    Surveys  under  State  Law — Surface  Survey. 

The  establishment  or  identification  by  survey  of  the 
exterior  limits  of  a  location  prior  to  an  official  survey 
of  the  claim  is  usually  provided  for  by  local  statute.1 

2.  RECORD.     The  field  notes  of  such  a  survey  ac- 
companied by  the  certificate  of  the  surveyor  making 
the  same  should  be  incorporated  into  the  recorded 
or  the  amended  notice  of  location.2 

3.  EVIDENCE.     Such  survey  and  certificate  become 
a  part  of  the  record  of  the  claim.     Such  record  is 
prima  facie  evidence  of  the  facts  therein  contained.3 

4.  UNDERGROUND  SURVEY.    The  court  in  which  an 
action  is  pending  and  in  which  say  the  extra-lateral 
right  is  involved,  may,  upon  the  application  of  either 
party  to  the   controversy,   good   cause  being  shown 
therefor,  order  a  survey  of  the  underground  workings 
of  the  mining  property  of  the  other  party.4 

5.  SERVICE  OF  ORDER.     Upon  due  service  of  the 
order  the  survey  may  be  made.5 

1.  The  Californian  Mining  Act  provides  that  "Where  a  locator, 
or  his  assigns,  has  the  boundaries  and  corners  of  his 
claims  established  by  a  United  States  deputy  mineral 
survey(or),  or  a  licensed  surveyor  of  this  state,  and 
his  claim  connected  with  the  corner  of  the  public  or 
minor  surveys  of  an  established  initial  point,  and  in- 
corporates into  the  record  of  the  claim  the  field  notes 
of  such  survey,  and  attaches  to  and  files  with  such 
location  notice,  a  certificate  of  the  surveyor,  setting 
forth:  first,  that  said  survey  was  actually  made  by 
him,  giving  the  date  thereof;  second,  the  name  of  the 
claim  surveyed  and  the  location  thereof;  third,  that  the 
description  incorporated  in  the  declaratory  statement 
is  sufficient  to  identify;  such  survey  and  certificate 
becomes  a  part  of  the  record,  and  such  record  is  prima 
facie  evidence  of  the  facts  therein  contained."  C.  C. 
§14261;  see  Cal.  Stats.  1907,  p.  310. 


56  SURVEYS.  [Ch.  5 

2.  C.  C.,  §  14261. 

3.  Id. 

4.  See  §  85  post. 

The  provisions  of  the  law  of  California  upon  this 
subject  are  as  follows:  "The  court  in  which  an  action  is 
pending  for  the  recovery  of  real  property,  or  for  dam- 
ages for  an  injury  thereto,  or  a  judge  thereof  may, 
on  motion,  upon  notice  by  either  party  for  good  cause 
shown,  grant  an  order  allowing  to  such  party  the 
right  to  enter  upon  the  property  and  make  survey  and 
measurement  thereof,  and  of  any  tunnels,  shafts,  or 
drifts  therein,  for  the  purpose  of  the  action,  even 
though  entry  for  such  purpose  has  to  be  made  through 
other  lands  belonging  to  parties  to  the  action."  C.  C. 
P.  §  742. 

"The  order  must  describe  the  property,  and  a  copy 
thereof  must  be  served  on  the  owner  or  occupant;  and 
thereupon  such  party  may  enter  upon  the  property, 
with  necessary  surveyors  and  assistants,  and  make 
such  survey  and  measurement;  but  if  any  unneces- 
sary injury  be  done  to  the  property  he  is  liable  there- 
for." C.  C.  P.  §  743. 

5.  C.  C.  P.  §  743. 

For  survey  of  land  divided  by  a  county  line  see 
Pol.  C.  §  4216. 


CHAPTEE  VI. 

LAND    DISTRICTS. 

§  41.  Land    district — additional     land    districts    and    changes 

therein. 

§  42.  Mineral  district. 
§  43.  Mining   district — extent — changing    boundaries — persons 

— corporation — regularity    of    proceedings — officers    of 

district — duties  of  recorder. 

§  41.  Land  District.  A  land  district  is  a  division 
of  a  state  or  territory,  as  the  case  may  be,  created  by 
law,  in  which  is  located  such  a  district  for  the  dispo- 
sition of  the  public  lands  therein.1 

2.  ADDITIONAL  LAND  DISTRICTS  AND  CHANGES 
THEREIN.  The  President  is  authorized  to  establish 
additional  land  districts,2  change  or  re-establish  the 
boundaries  thereof,3  and  discontinue  4  or  consolidate 
districts.5 

1.  U.   S.   v.   Smith,   11   Fed.   487.     As   to  Alaska  see   Columbi-a 

Co.  v.  Hampton,  161  Fed.  60. 

2.  Rev.   Stats.  §  2343. 

3.  Rev.  Stats.  §  2253. 

4.  Rev.  Stats.  §2252;    see  Rev.  Stats.  §2240. 

5.  27  Stats.  368. 


§43]  MINING   DISTRICT.  57 

§42.  Mineral  District.  The  term  "mineral  dis- 
trict" as  used  in  acts  of  Congress  is  said  to  be  neither 
known  in  the  law  or  fact  as  the  designation  of  any 
well-defined  or  exact  locality,  and  there  being  no 
method  of  proceeding  known  to  the  law  by  which  a 
district  can  be  prospected,  surveyed  and  established 
or  declared  to  be  a  "mineral  district,"  the  term  is  void 
and  incapable  of  definite  signification  or  local  applica- 
tion and  is  without  effect.1 

1.  U.  S.  v.  Smith,  11  Fed.  487;  see  Rev.  Stats.  §2334;  see 
U.  S.  v.  Copper  Queen  Co.,  7  Ariz.  80;  U.  S.  v.  Edgar, 
140  Fed.  655;  U.  S.  v.  Benjamin,  21  Fed.  285. 

§  43.  Mining  District.  A  mining  district  is  a  sec- 
tion of  country  designated  by  name,  having  described, 
or  understood,  boundaries  and  subject  to  the  customs, 
rules  and  regulations  adopted  and  prescribed  by  the 
miners  therein.1 

2.  EXTENT.     There  is  no  limit  to  its  territorial 
extent.2 

3.  CHANGING  BOUNDARIES.     The  boundaries-  of  a 
district   may   be    changed   if   vested   rights   are   not 
thereby  interfered  with.3 

4.  PERSONS.     No  certain  number  of  persons    are 
necessary  to  effect  its  organization.4 

5.  CORPORATION.     A  corporation  may  take  part  in 
the  formation  of  a  mining  district.5 

6.  REGULARITY  OF  PROCEEDINGS.     The  regularity 
of  the  mode  in  which  the  district  was  organized  will 
not  be  inquired  into  by  the  courts  unless  some  fraud 
be  shown.6 

7.  OFFICERS  OF  DISTRICT.    The  officers  of  a  district 
are  usually  limited  to  a  "Mining  Recorder,"  who  is 
elected  by  the  miners  thereof  .and  therein,  for  a  speci- 
fied term. 

8.  DUTIES  OF  RECORDER.     He  should  keep  proper 
books  for  recording  instruments  therein.7     Errors  of 
recordation  are  not  necessarily  fatal.8 


58  LAND   DISTRICTS.  [Ch.  6 

1.  U.    S.   v.   Smith,    11   Fed.    487;    see   Campbell   v.   Rankin,    99 

U.  S.  261. 

2.  King  v.  Edwards,  1  Mont.  235. 
3.- Id. 

4.  But  see  Fuller  v.  Harris,  29  Fed.  814. 

5.  McKinley  v.   Wheeler,   130  U.  S.   630. 

6.  Gore  v.  McBrayer,  18  Cal.  583. 

7.  Fuller  v.  Harris,   ante;   see  McCann   v.  McMillan,   129   Cal. 

350. 

8.  Myers   v.   Spooner,    55   Cal.    257;   Weese   v.   Barker,   7    Colo. 

178. 

CHAPTEE  VII. 

MINERAL  LANDS. 

§  45.  Land  subject  to  location — land  valuable  for  its  mineral 
deposits — classification  of  land-1— who  may  question 
character  of  land. 

§  46.  Land  not  subject  to  location — Indian  lands — allotments 
— patents. 

§  47.  Mineral   deposits. 

§  45.  Land  Subject  to  Location.  All  valuable 
mineral  deposits  in  land  belonging  to  the  United 
States,  both  surveyed  or  unsurveyed,  and  the  lands 
in  which  they  are  found,  are  free  and  open  to  explora- 
tion; occupation  and  purchase.1  This  includes  min- 
eral land  within  a  forest  reservation,2  the  unpatented 
parts  of  a  Congressional  grant  to  a  railroad  company  3 
or  to  a  state,4  or  of  an  unconfirmed  Mexican  grant,5 
or  land  within  the  limits  of  an  unpatented  town-site,6 
or  when  known  to  be  mineral  at  the  date  of  the  appli- 
cation for  patent  therefor,7  or  an  unlocated  or  unpat- 
ented "known  vein"  within  the  exterior  limits  of  a 
patented  or  unpatented  placer  mining  claim.8 

2.  LAND  VALUABLE  FOR  ITS  MINERAL  DEPOSITS. 
Land  valuable  for  its  mineral  deposits  is  land  which 
contains  minerals  in  sufficient  quantities  to  justify 
exploitation  and  development;  that  is,  land  which  is 
"chiefly  valuable"  for  other  than  agricultural  pur- 
poses, whether  the  deposit  is  metallic  or  non-metallic, 
and  all  such  lands  as  are  chiefly  valuable  for  their 
deposits  of  a  mineral  character  which  are  useful  in  the 
arts  or  valuable  for  purposes  of  manufacture.9 


§  45]  LAND   SUBJECT   TO  LOCATION.  59 

3.  CLASSIFICATION  OF  LAND.     There  is  no  certain, 
well-defined,  obvious  line  of  demarcation  between  min- 
eral and  non-mineral  land.10    No  land  can  be  valuable 
mineral  land  unless  it  contains  a  deposit  of  mineral 
in  some  form,  metalliferous  or  non-metalliferous    in 
quantity  sufficient  to  justify  expenditures  in  the  effort 
to  extract  it.11 

4.  WHO  MAY  QUESTION  CHARACTER  OF  LAND.    The 
question  of  the  character  of  land  can  be  raised  only 
by  the  United  States  or  those  claiming  under  them  12 
and  is  conclusively  determined  in  and  by  the  land 
department.13     The  question  usually  arises  at  the  in- 
stance of  some  party  connected  with  the  paramount 
title,  who  claims  the  land  to  be  non-mineral.14 

1.  Rev.  Stats.  §  2319.     Only  mineral  lands  are  subject  to  dis- 

position under  the  mining  laws.  American  Co.,  39  L.  D. 
299. 

2.  29  Stats.  11;  30  Stats.  36;  see  H.  H.  Yard,  38  L.  D.  59.     The 

land  department  has  full  authority,  of  its  own  motion 
or  at  the  instance  of  others,  to  inquire  into  and  deter- 
mine whether  mining  locations  within  National  Forest 
Reserves  were  preceded  by  the  requisite  discovery  of 
mineral;  whether  the  lands  are  of  the  character  sub- 
ject to  occupation  and  purchase  under  the  mining  laws 
notwithstanding  the  locator  has  not  applied  for  patent; 
and  if  the  location  be  found  to  be  invalid  the  lands 
covered  thereby  will  be  administered  as  part  of  the 
public  domain,  subject  to  the  reservation  for  forest 
purposes,  without  regard  to  the  location.  H.  H.  Yard, 
ante;  see,  generally,  U.  S.  v.  Rizzinelli,  182  Fed.  675. 

For  Rules  and  Regulations  governing  Forest  Re- 
serve see  24  L.  D.  589;  see,  also,  Roughton  v.  Knight, 
219  U.  S.  537. 

3.  13  Stats.  567;  N.  P.  R.  Co.  v.  Soderberg,  188  U.  S.  526. 

4.  Ivanhoe  Co.  v.  Keystone  Co.,  102  U.  S.  167;  Utah,  32  L.  D. 

117;  see  McQuiddy  v.  California,  29  L.  D.  181;  Heyden- 
feldt  v.  Daney  Co.,  93  U.  S.  634;  Garrard  v.  S.  P.  Mines. 
94  Fed.  983;  Keystone  Co.  v.  Nevada,  15  L.  D.  259; 
Stanley  v.  Mineral  Union,  26  Nev.  55;  Wheeler  v.  Smith, 
5  Wash.  704. 

5.  Lockhart  v.   Wills,   9   N.   M.   344;   see   s.   c.   181   U.   S.    516; 

Lockhart  v.  Leeds,  10  N.  M.  568. 

6.  Steel  v.  St.  Louis  Co.,  106  U.  S.  447;  see  Davis  v.  Weibbold, 

139  U.  S.  507. 

7.  Lalande  v.  Saltese,  32  L.  D.  211. 

8.  Reynolds   v.   Iron   Co.,    116   U.   S.   687;    Clary  v.   Hazlitt,   67 

Cal.  286;  Mt.  Rosa  Co.  v.  Palmer,  26  Colo.  56. 

9.  N.  P.  R.  Co.  v.  Soderberg,  ante;  Steele  v.  Tanana  Co.,   148 

Fed.  678;  see  Pacific  Coast  Co.  v.  N.  P.  R.  Co.,  25  L.  D. 
233;  Alford  v.  Barnum,  45  Cal.  482;  Merrill  v.  Dixon, 
15  Nev.  401;  see  §99,  post. 


60  MINERAL  LANDS.  tCh.  7 

10.  Ah  Yew  v.  Choate,  24  Cal.  562. 

11.  Deffeback  v.  Hawke,   115  U.  S.  392;  N.  P.  R.  Co.  v.  Soder- 

berg,  ante;  Brophy  v.  O'Hare,  34  L.  D.  596. 

12.  Ryan  v.  Granite  Hill  Co.,  29  L.  D.  522;  Lorenz  v.  Waldron, 

96  Cal.  243;  Standard  Co.  v.  Habishaw,  132  Cal.  115. 

A  trespasser  making  no  claim  to  the  land  under 
any  of  the  public  land  laws  could  not  be  heard  to 
urge,  against  one  who  had  made  a  discovery  upon 
mineral  land  and  performed  the  acts  of  location,  that 
the  land  was  more  useful  for  purposes  other  than 
mining.  Zeiger  v.  Dowdy,  (Ariz.)  114  Pac.  765. 

13.  Burfenning  v.  Chicago  R.  Co.,  163  U.  S.  321;  Standard  Co. 

v.  Habishaw,  ante.  There  must  be  some  point  of  time 
when  the  character  of  the  land  must  be  finally  deter- 
mined; and  for  the  interest  of  all  concerned  there  can 
be  no  better  point  to  determine  this  question  than  at 
the  time  of  issuing  the  patent.  Cowell  v.  Lammers,  21 
Fed.  200. 

14.  Chrisman  v.  Miller,  197  U.   S.  313;  Book  v.  Justice  Co.,  58 

Fed.  106;  Olive  Land  Co.  v.  Olmstead,  103  Fed.  568; 
Mutchmor  v.  McCarty,  149  Cal.  603.  When  the  ques- 
tion of  the  character  of  land  is  raised  it  must  be  tried 
out,  and  until  patent  has  been  issued  the  question  as 
to  the  character  of  land  at  the  date  of  entry  is  an 
open  one,  subject  to  investigation  and  determination 
by  the  land  department.  American  Co.,  ante. 

§  46.  Land  Not  Subject  to  Location.  Land  is  not 
subject  to  mineral  location  when  lying  within  the 
States  of  Michigan,  Minnesota,1  Missouri,  Kansas,2 
Alabama,3  or  within  a  subsisting  Indian,4  military,5 
naval,6  and,  possibly,  a  park,7  or  a  reservoir  8  reserva- 
tion; or  when  withdrawn  from  sale  by  authority  of 
Congress  or  by  an  executive  order,  express  or  implied,9 
or  when  situated  below  high  tide,10  (except,  in  a  lim- 
ited way,  in  Alaska),11  or  when  the  bed  of  a  navigable 
river;12  or  coal  or  iron  lands  within  the  limits  of  a 
Congressional  land  grant  to  a  railroad  company 13 
or  within  its  rights  of  way  14  or  its  indemnity  limits, 
or  land  within  the  limits  of  a  Congressional  land  grant 
to  a  state,  after  approval  of  survey  or  certification  by 
the  land  department;15  or  any  mineral  springs16  (not 
salt  springs17);  or  land  which  is  occupied,  under 
color  of  title,  (unless  it  can  be  done  peaceably  18)  or 
land  which  has  passed  into  private  ownership.19 

2.  INDIAN  LANDS.  Although  no  mineral  location 
may  be  laid  upon  land:  within  an  Indian  reservation, 


§  46]  LAND  NOT  SUBJECT  TO  LOCATION.  61 

mineral  land  therein  may  be  leased  for  a  period  not  to 
exceed  ten  years  by  authority  of  the  council  speaking 
for  the  Indians,  upon  such  terms  and  conditions  as 
the  agent  in  charge  of  such  reservation  may  recom- 
mend, subject  to  the  approval  of  the  Secretary  of  the 
Interior.20 

3.  ALLOTMENTS.     The  character  of  the  land  em- 
braced in  an  allotment  in  severalty  or  in  a  trust  or 
first  patent  may  be  examined  into,  but  the  party  insti- 
gating the  attack  thereon  secures  no  preferential  right 
to  the  land  involved  in  the  event  of  cancellation.21 

4.  PATENTS.     Patents    in    fee-simple,  without  re- 
striction as  to  incumbrance  or  taxation,  may  issue  at 
any  time  that  the  Secretary  of  the  Interior  is  satisfied 
that  the  allottee  is  competent  and  capable  of  manag- 
ing his  affairs;22  formerly  an  interval  of  twenty-five 
years,  possibly  longer,  might  elapse  between  the  issu- 
ance of  the  first  and  second  patents.23 

1.  17  Stats.  465. 

2.  19  Stats.  52. 

3.  22  Stats.  487. 

4.  Buttz   v.   N.    P.    R.,    119    U.    S.    55;    McFadden   v.    Mt.   View 

Co.,  97  Fed.  670;  Gibson  v.  Anderson,  131  Fed.  39;  Acme 
Co.,  31  L.  D.  125;  Kendall  v.  San  Juan  Co.,  9  Colo.  349 
affd.,  144  U.  S.  658;  Bay  v.  Oklahoma  Co.,  13  Okla.  425. 
Lands  within  the  limits  of  an  Indian  reservation  are 
excluded  from  disposal  as  the  public  lands  are  usually 
disposed  of  and  are ,  exempt  from  all  Congressional 
legislation  unless  there  -is  an  express  declaration 
therein  to  the  contrary.  Leavenworth  Co.  v.  U.  S.,  92 
U.  S.  733.  In  Oklahoma  only  mineral  land  within  the 
boundaries  of  tracts  ceded  by  various  Indian  tribes 
therein  to  the  United  States  are  subject  to  mineral 
location.  Bay  v.  Oklahoma  Co.,  ante. 

5.  Behrends  v.  Goldstein,  1  Alaska  518.     See  31  Stats.  180. 

6.  Behrends  v.  Goldstein,  ante. 

7.  Rev.   Stats.   §2474;   30   Stats.  993. 

8.  25   Stats.   527;   29   Stats.   484;   Colomokas  Co.,   28  L.  D.   172. 

See  John  U.  Gabathuler,  15  L.  D.  418;  Loney  v.  Scott, 
(Or.)  112  Pac.  172. 

9.  Lockhart  v.   Johnson,    181   U.   S.    516;   Gibson   v.   Anderson, 

ante;  Allen  H.  Cox,  31  L.  D.  193.  See  §  120,  note  3,  post. 
Lands  valuable  for  mineral  deposits  and  embraced 
within  a  withdrawal  of  lands  susceptible  of  irrigation 
by  means  of  a  reclamation  project  under  Act  of  June 
17,  1902,  are  not  thereby  taken  out  of  the  operation  of 
the  mining  laws,  but  continue  open  to  exploration  and 


62  MINERAL  LANDS.  [Ch.  7 

purchase  under  such  laws.  32  Stats.  388;  Instructions 
35  L.  D.  216;  Loney  v.  Scott,  ante. 

10.  Knight  v.  U.  S.  Land  Ass'n.,   142  U.  S.   161;   Alaska  Co.  v. 

Barbridge,   1  Alaska  311. 

11.  Carter's  Anno.  Alaska  Codes,  139. 

12.  Argillite  Co.,   29   L.   D.   585;   Ball   v.   Tolman,   119   Cal.   358. 

As  to  bed  of  non-navigable  river  see  Kirby  v.  Potter, 
138  Cal.  686. 

13.  Wilkinson   v.    N.    P.   R.   Co.,    5  Mont.    538;   S.   C.   R.   Co.  v. 

O'Donnell,  3  Cal.  A.  382. 

14.  18   Stats.   482;    St.  Jos.   R.   Co.   v.   Baldwin,    103   U.   S.   426; 

Washington  Co.  v.  Osborn,  160  U.  S.  103;  Spokane  Co. 
v.  Zeigler,  167  U.  S.  65.  See  S.  C.  R.  Co.  v.  O'Donnell, 
ante;  Bonner  v.  Rio  Grande  S.  R.  Co.,  31  Colo.  446. 

15.  See   Saunders  v.   La  Purisima  Co.,   125   Cal.   159;   see   §28, 

ante;  U.  S.  v.  Missouri  R.  Co.,  141  U.  S.  358;  U.  S.  v. 
Winona  R.  Co.,  67  Fed.  948. 

16.  Pagosa  Springs,  1  L.  D.  562. 

17.  31  Stats.   745. 

18.  Nev.   Sierra  Oil   Co.  v.  Home  Oil   Co.,   98   Fed.   673;    Olive 

Land  Co.  v.  Olmstead,  103  Fed.  568;  Miller  v.  Chrisman, 
140  Cal.  440;  see  Phillips  v.  Smith,  11  Ariz.  309. 

19.  Pac.  Coast  Co.  v.  Spargo,  16  Fed.  348;  Francoeur  v.  New- 

house,  40  Fed.  618.  See  Olive  Land  Co.  v.  Olmstead, 
ante;  Janette  W.  Riley,  33  L.  D.  68. 

20.  24  Stats.   388. 

21.  Indian  Lands,  32  L.  D.  17. 

22.  34  Stats.  182;  36  Stats.  855;  Bond  v.  U.  S.  181  Fed.  613;  see 

Joseph  Black  Bear,   38  L.  D.  422. 

23.  24  Stats.  388.     As  to  statutes  of  limitation  see  Stats.  284; 

Ballinger  v.  Frost,  216  U.  S.  240. 

§  47.  Mineral  Deposits.  The  mineral  deposits 
declared  by  Congress  as  subject  to  location  are 
gold,  silver,  cinnabar,  lead,  tin,  copper,1  building 
stone,2  petroleum  and  other  mineral  oils,3  salt  springs 
and  other  deposits  of  salt,4  and,  generally,  any  min- 
eral in  rock  in  place  5  or  other  form  of  deposit.6 

The  courts  and  the  land  department  have  found  the 
following  substances  in  land  to  be  mineral,  viz. :  agate,7 
albertite,8  alum,9  amber,10  amygdaloid  bands,11  as- 
phalt,12 auriferous  cement,13  auriferous  clay  or 
gravel,14  black  lead,15  borax,16  brick  clay,17  building 
sand,  building  stone,18  calk,  calc-spar,19  carbonate  of 
soda,20  china  clay,21  chromate  of  iron,22  coal,23  cropo- 
lite's,24  diamonds,25  fahl  band,26  fire  clay,27  galena,2-8 
gilsonite,29  gold-bearing  gravel,30  granite,31  graphite,32 
gypsum,33  gypsum-cement,34  guano,35  iron,36  kao- 
lin,37 lepidolite,38  lignite,39  limestone,40  lustral,41 


§  47]  MINERAL,  DEPOSITS.  63 

magnesia,42  magnesite,43  marble,44  mica,45  mineral 
paint  stone,46  natural  gas,47  nitrate  of  soda,48  onyx,49 
opal,50  petroleum,51  phosphates,  phosphate  lands,52 
potash,53  plumbago,54  resin,55  rock  salt,56  saline 
lands,57  salt  springs,58  slate,59  soda,60  stone,  flint 
stone,  sand  stone,61  stone  suitable  for  making  lime,62 
salt,63  stockwerke,64  sulphur,65  tailings, 66  umber,67 
water,68  (but  not  subject  to  location  under  the  mining 
laws  69)  zinc.70 

1.  Rev.  Stats.  §  2320. 

2.  27  Stats.  348. 

3.  29  Stats.   526. 

4.  31  Stats.  745. 

5.  Rev.  Stats.  §  2320. 

6.  Rev.  Stats.  §  2329.     As  to  coal,  iron  and  lead  see  19  Stats. 

52.  As  to  gilsonite,  asphaltum,  elaterite,  or  other  like 
substances  see  30  Stats.  87.  The  test  which  Congress 
provided  by  this  legislation  to  be  applied  to  determine 
how  mineral  deposits  should  be  secured  was  the  form 
and  character  of  the  deposits.  If  they  are  in  veins  or 
lodes  in  rock  in  place,  they  may  be  located  and  pur- 
chased under  this  legislation  by  means  of  lode  mining 
claims.;  if  they  are  not  in  fissures  in  rock  in  place  but 
are  loose  or  scattered  on  or  through  the  land  they  may 
be  located  and  bought  by  the  use  of  placer  mining 
claims.  Webb  v.  American  Co.,  157  Fed.  203;  Utah 
Onyx  Dev.  Co.,  38  L.  D.  504. 

7.  P.  M.  Gill,  Min.  Law  Dig.  27. 

8.  Com'r  to  Secretary  Noble,  Min.  Law  Dig.  27. 

9.  Min.  Lands.  Val.  Dep.  1.  L.  D.  561;  N.  P.  R.  Co.  v.  Soder- 

berg,  188  U.  S.  526. 

10.  N.  P.  R.  Co.  v.  Soderberg,  ante. 

11.  Copps  Min.  Lands  52. 

12.  N.   P.   R.   Co.  v.   Soderberg,   ante;   Webb  v.   American  Co., 

ante;  Min.  Lands  Val.  Dep.,  ante. 

13.  Maxwell  v.  Brierly,  10  C.  L.  O.  50. 

14.  Copps  Min.  Lands,  121,  see  N.  P.  R.  Co.  v.  Soderberg,  ante. 

15.  C.  F.  Conrad,  Min.  Law  Dig.  28. 

16.  N.  P.  R.  Co.  v.  Soderberg,  ante;  Min.  Lands  Val.  Dep.,  ante. 

17.  N.  P.   R.   Co.  v.   Soderberg,   ante;   Blake  Placer  Min.  Law 

Dig.  27;  Montague  v.  Dobbs,  9  C.  L.  O.  165;  see  King  v. 
Bradford,  31  L.  D.  108;  Zimmerman  v.  Brunson,  39  L.  D. 
310. 

18.  Loney  v.  Scott,   (Or.)   112  Pac.  172;    N.  P.  R.  Co.  v.  Soder- 

berg, ante;  Forsythe  v.  Weingart,  27  L.  D.  680;  Free- 
zer v.  Sweeney,  8  Mont.  508;  see  note  30,  post. 

19.  Stone  v.  Arkwright,  77  L.  T.  Rep.  N.  S.  400. 

20.  Min.  Lands  Val.  Dep.,  ante. 

21.  N.  P.  R.  Co.  v.  Soderberg,  ante. 

22.  Gibson  v.  Tyean,  5  Watts  34. 

23.  N.  P.  R.  Co.  v.  Soderberg,  ante;  Mullan  v.  U.  S.,  118  U.  S. 

271;  Murray  v.  Allred,  100  Tenn.   100. 

24.  Atty.  Gen.  v.  Tomline,  5  Ch.  Div.  762. 

25.  N.  P.  R.  Co.  v.  Soderberg,  ante. 


64  MINERAL  LANDS.  [Ch.  7 

26.  Cir.   1  C.  L.   O.   11. 

27.  Maxwell  v.  Brierly,  ante;  N.  P.  R.  Co.  v.  Soderberg,  ante. 

28.  Duggan  v.  Davey,  4  Dak.   110! 

29.  Webb   v.   American   Co.,    ante. 

30.  Gregory  v.  Pershbaker,  73  Cal.  109.     Gravel  and  sand  de- 

posits unless  they  possess  a  peculiar  property  or  char- 
acteristic giving  them  a  special  value  are  not  regarded 
as  mineral.  So,  such  deposits  are  not  necessarily  sub- 
ject to  mineral  location  when  suitable  for  mixing  with 
cement  for  concrete  construction.  Zimmerman  v.  Brun- 
son,  ante. 

31.  N.  P.  R.  Co.  v.  Soderberg,  ante. 

32.  C.  F.  Conrad,  ante. 

33.  N.  P.  R.   Co.   v.   Soderberg,   ante;  McQuiddy  v.   California, 

29  L.  D.  181:  Madison  v.  Octave  Oil  Co.,  154  Cal.  768. 

34.  Phifer  v.  Heaton,  27  L.  D.  57. 

35.'  -N.  P.  R.  Co.  v.  Soderberg,  ante;  Richter  v.  Utah,   27  L.  D. 
95;  see  U.  S.  v.  Duncan  Co.,  137  U.  S.  647. 

36.  Stewart,  1  C.   L.  O.   34. 

37.  Maxwell   v.   Brierly,   ante. 

38.  Stewart  v.  Douglass,   148  Cal.   511. 

39.  Min.  L.  &  M.  Res.,  35  L.  D.  665. 

40.  N.   P.   R.   Co.   v.   Soderberg,   ante;   Morrill  v.   N.   P.   R.   Co., 

30  L.  D.   475. 

41.  Johnson  v.  Cal.  Lustral  Co.,  127  Cal.  283. 

42.  Gibson  v.  Tyean,  ante. 

43.  Johnson  v.  Withers,  9  Cal.  A.  52. 

44.  Pac.  Coast  Co.  v.  N.  P.  R.  Co.,  25  L.  D.  233;    N.  P.  R.  Co.  v. 

Soderberg,  ante;  Scrimpf  v.  N.  P.  R.  Co.,  29  L.  D.  327;* 
Henderson  v.  Fulton,  35  L.  D.  652. 

45.  N.  P.  R.  Co.  v.  Soderberg,  ante;  Arnold,  2  C.  L.  O.  131. 

46.  Chas.  A.  Barnes,  7  L.  D.  66;    Hartwell  v.  Camman,  10  N.  J. 

Eq.   128. 

47.  Buffalo    Co.,    73    Fed.    191;    Manufacturing   Co.    v.    Indiana 

Co.,  155  Ind.  461. 

48.  Min.  Lands  Val..  Dep.,  ante. 

49.  Utah  Onyx  Dev.  Co.,  ante. 

50.  F.  T.  Palmer  Min.  Law  Dig.  29. 

51.  N.   P.   R.   Co.  v.   Soderberg,   ante;    Gird   v.    Cal.   Oil   Co.,    60 

Fed.  531.  The  term  "oil  bearing  strata"  has  been  de- 
fined as  any  bed,  seam  or  stratum  of  rock  or  sand  or 
other  material  which  contains,  includes  or  yields  earth- 
oil,  rock  oil,  or  petroleum  oil  or  natural  gas  or  any  of 
them.  Cal.  Stats.  1909,  p.  586. 

52.  Gary  v.  Todd,  18  L.  D.  58;  Florida  Co.,  26  L.  D.  600. 

53.  Maxwell   v.   Brierly,   ante. 

54.  C.  F.  Conrad,  ante. 

55.  N.  P.  R.  Co.  v.  Soderberg,  ante. 

56.  Megarrigle,  9  C.  L.  O.  113;    see  Southwestern  Co.,  14  L.  D. 

597. 

57.  Garrard  v.   S.   P.   Mines,    94   Fed.   983;   Leonard  v.   Lennox, 

181  Fed.  760;  Elliott  v.  S.  P.  R.  Co.,  35  L.  D.  149.. 

58.  State  v.  Parker,  61  Tex.  265. 

59.  Schrimf  v.  N.  P.  R.  Co.,  ante;    Murray  v.  Allred,  ante. 

60.  Cir.  ante;  E.  M.  Palmer,  38  L.  D.  294. 

61.  N.  P.  R.  Co.  v.  Soderberg,  ante;  Van  Doren  v.  Plested,   16 

L.  D.  508;  see  E.  M.  Palmer,  ante. 

62.  Shepherd  v.  Bird,   17  L.  D.   82. 

63.  Murray  v.  Allred,  ante. 

64.  Copps  Min.   Lands   52. 


§  50]  VEIN,  LODE  AND  LEDGE.  65 

65.  Min.  Lands  Val.  Dep.,  ante. 

66.  Rogers  v.  Cooney,  7  Nev.  213. 

67.  Copps   Min.    Lands   161. 

68.  Westmoreland  Co.   v.  DeWitt,   130   Pa.   St.   235;    Ridgeway 

Co.  v.  Elk  Co.,   191  Pa.  St.   465. 

69.  Snyder  v.  Colo.  Co.,  181  Fed.  62;  but  see  Schwab  v.  Beam, 

86   Fed.   41. 

70.  Buffalo  Zinc  Co.  v.  Crump,   70  Ark.   525. 

CHAPTEE  VIII. 

VEIN,  LODE  AND   LEDGE. 

§  50.  In  general — interchangeable  terms — miners'  use  of  terms 
— common  use — the  miner's  vein  or  lode — miner's  dis- 
tinction between  vein  and  lode — vein  within  lode — 
synonymous  terms — statutory  meaning — judicial  defini- 
tions— general  rule — no  conflict — various  definitions — 
no  arbitrary  definition — approved  definition  —  gravel 
deposits — characteristics  of  a  vein  or  lode — elements 
of  a  vein  or  lode — fissure  veins — broad  lodes — walls  of 
broad  lode — indivisibility  of  a  broad  lode — separate 
veins  within  zone — blind  vein — blanket  vein — second- 
ary or  incidental  vein — extra-lateral  right  to  second- 
ary vein — single  vein — intersecting  veins — ^apex  of  in- 
tersecting veins — cross  veins — space  of  intersection — 
contact  vein — known  vein — ledge  matter — in  place — 
rock  in  place — other  rock  in  place — vein  or  lode  in 
place — vein  or  lode  not  in  place — country  rock — horse 
— dykes — outcroppings — identity  of  vein  and  outcrop — 
outcroppings  not  essential — top  or  apex — highest 
point — legal  top  or  apex — discovery  of  top  or  apex — 
location  must  include  top  or  apex — course  or  strike — 
determining  course  of  strike — practical  rule — follow- 
ing course  of  strike^ — dip  or  downward  course — meas- 
uring dip — easement  or  servitude — following  the  dip — 
walls  of  vein  or  lode — ^boundaries  of  vein  or  lode — 
indications — impregnations. 

§  50.     In    General.     No    definition    of    the    term 
"vein,  lode  and  ledge"  is  given  in  the  mining  act.1 

2.  INTERCHANGEABLE  TERMS.     In  that    act    those 
terms  are  used  interchangeably,  the  object  being  to 
give  them  a  more  comprehensive  meaning  than  the 
technical  definitions  convey.     Their  meaning  as  used 
therein  is  that  which  is  so  called  by  miners.2 

3.  MINERS'  USE  OF  TERMS.    Miners  used  the  terms 
"vein,  lode  and  ledge"  before  geologists  attempted  to 
give  them  a  definition.3 

4.  COMMON  USE.    The  terms  "vein,  lode  and  ledge" 
are  now  used  synonymously  by  miners,  Congress  and 
the  courts.4 


66  VEIN,  LODE  AND   LEDGE. 

5.  THE  MINER'S  VEIN  OR  LODE.     To  the  miner  a 
vein  or  lode  is  any  body  of  ore,  quartz  or  other  min- 
eral-bearing substance  lying  within  the  crust  of  the 
earth,   bounded  on   each  side  by  the   country  rock, 
greatly  varying  in  extent  across  and  through  the  coun- 
try for  greater  or  less  distances.5 

6.  MINERS'  DISTINCTION  BETWEEN  VEIN  AND  LODE. 
Among  practical  miners,  generally,  narrow  veins  are 
designated  simply  as  "veins,"  while  veins  of  great 
thickness  are  called  "great  veins"  6  or  "lodes."     This 
distinction,  of  course,  is  not  scientific. 

7.  VEIN  WITHIN  LODE.     A  "lode"  may,  and  often 
does,  contain  more  than  one  "vein."  7    It  is  then  popu- 
larly called  a  "broad  lode"  or  zone. 

8.  SYNONYMOUS  TERMS.    The  term  "lode"  is  a  Cor- 
nish word  nearly  synonymous  with  the  term  vein.8 

9.  STATUTORY  MEANING.     The    terms  "vein,  lode 
and  ledge,"  within  the  meaning  of  the  mining  act  is 
whatever  the  miner  could  follow  and  find  ore.9 

10.  JUDICIAL  DEFINITIONS.    Various  courts  have  at 
different  times  given  a  definition  of  what  constitutes 
a  vein,  lode  and  ledge,  within  the  meaning  of  that  act. 

11.  GENERAL    RULE.     The    definitions    that    have 
been  given  by  the  courts,  as  a  general  rule,  apply  to 
the  peculiar  character  of  the  ore  deposits  or  vein  mat- 
ter and  of  the  country  rock  in  the  particular  district 
where  the  claims  are  located. 

12.  No  CONFLICT.     There  is  no  conflict  in  the  de- 
cisions but  the  result  is  that  some  definitions  have 
been  given  in  some  of  the  states  that  are  not  deemed 
wholly  applicable  to  the  conditions  and  surroundings 
of  mining  districts  in  other  states,  or  other  districts 
in  the  same  state. 

13.  VARIOUS  DEFINITIONS.    So,  many  definitions  of 
veins  have  been  given,  varying  according  to  the  facts 
under  consideration. 


§  50]  ELEMENTS  OF  A  VEIN  OR  LODE.  67 

14.  No  ARBITRARY  DEFINITION.    The  terms  are  not 
susceptible  of  an  arbitrary  definition,  applicable  to 
every  case.     In  a  measure,  conditions  of  locality  and 
deposit  control.10 

15.  APPROVED   DEFINITION.     An   approved   defini- 
tion is  as  follows :  "A  zone  or  belt  of  mineralized  rock 
lying  within  boundaries  clearly '  separating  it  from 
neighboring  rock.    It  includes  all  deposits  ,of  mineral 
matter  found  through  a  mineralized  zone  or  belt  com- 
ing from  the  same  source,  impressed  with  the  same 
forms  and  appearing    to    have  been  created  by  the 
same  processes."  Il 

This  definition,  expressed  in  other  words,  is  that  a 
"lode"  designates  any  zone  or  belt  of  mineralized  rock 
lying  within  boundaries  clearly  separating  it  from 
the  neighboring  rock.  It  further  implies  a  oneness, 
genetically,  of  the  ore  deposits  included  within  its 
boundaries. 

16.  GRAVEL  DEPOSITS.     The  above  definition   does 
not  apply  to  gravel  deposits  inclosed  within  defined 
boundaries.12 

17.  CHARACTERISTICS  OF  A  VEIN  OR  LODE.    In  the 
books  and  among  miners,  veins  and  lodes  are  invested 
with  many  characteristics,  as  that  they  lie  in  fissures 
or  other  openings  in  the  country  rock ;  that  they  con- 
tain materials  differing  or  in  some  respects    corre- 
sponding with  the  country  rock ;    that  they  are  of  a 
tabular  form  and  a  banded  structure ;   that  some  one 
or  several  things  are  generally  associated  with  the  val- 
uable ores ;    that  they  have  selvages  and  slickensides 
in  the  fissures  and  openings,  and  the  like.     Some  of 
these  characteristics  are  said  to  be  common  to  all  lodes 
and  veins,  and  others  are  of  rare  occurrence.13 

18.  ELEMENTS  OF  A  VEIN  OR  LODE.     The  elements 
of  a  vein  or  lode  are  mineral  or  mineral-bearing  rock 
and  boundaries  in  place  in  the  general  mass  of  the 
mountain.     "When   one   of   these   is  well   established 


68  VEIN,  LODE  AND   LEDGE.  [Ch.  S 

very  slight  evidence  may  be  accepted  as  to  the  exist- 
ence of  the  other.14  But  every  seam  or  crevice  in  the 
rock  does  not  constitute  a  vein  or  lode  nor  every  ridge 
of  stained  rock  its  croppings.15  The  vein  or  lode  need 
be  continuous  only  in  the  sense  that  it  may  be  traced 
through  the  surrounding  rocks.16 

It  need  not  have  well-defined  walls.17  It  may  vary 
in  direction,  width,  dip  and  value,  split  or  divide 
into  branches,  both  in  length  and  in  depth.  These 
branches  may  or  may  not  again  unite.18 

That  it  is  occasionally  found  in  the  general  course 
of  the  vein  or  shoot  in  pockets  deeper  down  into  the 
earth  or  higher  up,  does  not  affect  its  character  as  a 
vein,  lode  or  ledge.19 

19.  FISSURE  VEINS.    A  fissure  vein,  in  mining  par- 
lance, is  a  longitudinal  opening  with  a  foreign  sub- 
stance in  it.20 

True  fissures  often  exist  and  are  continuous  without 
having  any  filling  in  certain  points  or  places  of  min- 
eral matter.  A  majority  of  such  lodes  have  in  addi- 
tion to  the  clean  fissure  filling  of  mineral,  a  consid- 
erable amount  of  decomposed  rock,  clay,  etc.21 

Metalliferous'  rock  in  place,  not  in  fissure,  may  be 
found  under  such  conditions  within  clearly  defined 
boundaries  as  to  require  recognition  as  a  vein  or  lode.22 

A  broad  metalliferous  zone,  having  within  its  limits 
true  fissure  veins,  plainly  bounded,  cannot  be  re- 
garded as  a  "vein"  or  "lode,"  although  such  zone  may 
have  boundaries  of  its  own  which  can  be  traced.23 

20.  BROAD  LODES.     The  term  "lode"  has  become 
extensively  used  in  the  classification  of  ore  deposits 
that  are  not  comprehended  by  the  definition  of  a  vein. 
Such  an  ore  occurrence    is    called    by  the    courts '  a 
"broad  lode"  or  zone.24 

21.  WALLS  OF  BROAD  LODE.    A  broad  lode  may  be 
without  distinct  walls,  in  which  case  its  legal  width  is 


§  50]  BROAD  LODE — BLIND  VEIN.  69 

determined  by  the  lines  beyond  which  indications  suf- 
ficient to  encourage  its  further  exploitation,  with  the 
hope  of  profit,  do  not  appear.25 

22.  INDIVISIBILITY  OF  A  BROAD  LODE.     The  owner- 
ship of  the  apex  of  a  broad  lode. or  vein  confers  the 
right  to  all  mineral  extending  into  adjoining  terri- 
tory, although  adversely  held,  when  its  formation  is 
such  as  to  present  a  unity  of  the  whole  nwiss  as  a  vein 
or  lode.     It  is  usually  treated  as  a  unit  and  indivis- 
ible in  point  of  width  as  respects  the  right  to  pursue 
it  extra-laterally  beneath  the  surface  because,  usually, 
the  wridth  of  the  vein  or  lode  is  so  irregular  and  its 
strike  and  dip  depart  so  far  from  right  lines  that  it 
is  altogether  impracticable,  if  not  impossible,  to  con- 
tinue the  longitudinal  bisection  at  the  apex  through- 
out the  vein  or  lode,  on  its  dip.    Where  two  or  more 
mining  claims  longitudinally  bisect  or  divide  the  apex 
of  a  vein  or  lode,  the  senior  claim  takes  the  entire 
width  of  the  vein  or  lode,  on  its  dip,  if  it  is  in  other 
respects  so  located  as  to  give  the  extra-lateral  right.26 

23.  SEPARATE  VEINS  WITHIN  ZONE.     Where  min- 
eral deposits  are  separated  into  well-defined    parts, 
traceable  for  a  great  distance    in    their  length  and 
depth,   and  having  distinct  foot  and  hanging  walls, 
each  part  is  a  separate  vein  within  the  meaning  of  the 
mining  laws  giving  the  right  to  follow  the  dip  of  the 
vein  beyond  the  side  lines,  although  there  are  many 
ore-bearing  cracks  and  seams  running  out  from  each 
vein,   and  sometimes  extending  over  to  the  other.27 
Ore  bodies  formed  off  from  and  unconnected  with  a 
fissure  vein  do  not  form  a  separate  vein,  lodge,  ledge, 
or  mineral  deposit.28 

24.  BLIND   VEIN.      A   blind   vein   or   lode   is   one 
which  does  not  crop  upon  the  surface  29  and  has  its 
top  or  apex  below  the  surface  of  the  ground.30     Such 
veins  belong  to  the  surface  location.31 


70  VEIN,  LODE  AND  LEDGE.  [Ch.  8 

25.  BLANKET  VEIN.    Blanket  vein  is  a  term  appli- 
cable to  a  horizontal  vein  or  deposit  which  may  have 
no  distinct  apex.32 

26.  SECONDARY  OB  INCIDENTAL  VEIN.    A  secondary 
or  incidental  vein  or  lode  is  a  vein  or  lode  within  a 
mining  claim  or  location  other  than  the  one  located  or 
intended  to  be  located.33 

27.  EXTOA-LATERAL  BIGHT   TO   SECONDARY  VEIN. 
The  extra-lateral  right  to  secondary  veins  is  not  con- 
fined to  such  veins  as  apex  within  the  same  segment 
of  the  claim  in  which  the  apex  of  the  discovery  vein 
exists.34     But  no  extra-lateral  right  attaches  thereto 
should  the  vein  or  lode  happen  to  extend  transversely 
to  the  vein  or  lode  located  or  intended  to  be  located, 
although  it  may  have  its  apex  within  the  lines  of  such 
location.35 

28.  SINGLE  VEIN.    A  "single  vein"  in  the  sense  in- 
which  the  term  is  used  by  miners  is  a  single  ore  deposit 
of  identical  origin,  age  and  character  throughout.36 
A  single  small  vein  is  weighed  and  measured  by  the 
same  law  and  entitled  to  the  same  consideration  as  the 
"mother  lode,"  and  very  often  is  far  more  valuable  in 
the  eyes  of  the  miner.37 

29.  INTERSECTING  VEINS.    Veins  or  lodes  may  in- 
tersect upon  their  strike  or  dip,  and  below  the  point 
of  union  become  one  vein  or  lode,  in  which  case  the 
prior  locator  takes  the  same  below  the  point  of  union, 
including  all  the  space  of  intersection.38 

30.  APEX  OF  INTERSECTING  VEINS.    Where  two  or 
more  veins  or  lodes  with  an  apex  in  different  mining 
claims  unite  in  their  dip  within  the  lines  of  a  third 
claim  the  owners  of  the  latter  claim  have  no  right  in 
either  vein  or  lode  beyond  the  point  of  union.39 

31.  CROSS  VEINS.     Where  two  or  more  veins  or 
lodes  cross  each  other,  priority  of  title  governs  and 
the  senior  locator  is  entitled  to  all  the  mineral  within 
the  space  of  intersection  of  the  veins  or  lodes,  but  the 


§  50]  ROCK  IN  PLACE.  71 

junior  locator  has  the  right  of  way  through  the  space 
of  intersection  for  the  convenient  working  of  the 
mine.40 

32.  SPACE  OF  INTERSECTION.    There  is  some  ambi- 
guity   in    the    term  "space  of  intersection/'  that  is, 
whether  it  means  through  the  space  of  intersection  of 
the  veins  or  lodes  or  through  the  space  of  intersection 
of  the  locations.41 

33.  CONTACT  VEIN.     A  contact  vein  is  one  where 
each  of  the  inclosing  walls  is  of  a  •  different  character 
or  formation.    One  of  such  walls  may  be  composed  of 
limestone  and  the  other  wall  be  of  porphyry.42 

34.  KNOWN  VEIN.     A  "known  vein,"  as  the  term 
is  used  in  the  mining  act,  is  one  that  contains  mineral 
in  such  quantity  and  quality  as  to  justify  expenditure 
for  the  purpose  of  its  extraction.43     Its  existence  is 
not  established  by  indications  of  outcroppings.44    The 
amount  of  ore,  the  facility  for  reaching  and  work- 
ing it,  as  well    as   the    product  per  ton,  are    all    to 
be  considered  in  determining  whether  the  vein  or  lode 
is  one  which  justifies  exploitation  and  working.45 

35.  LEDGE  MATTER.     Ledge  or  vein  matter  is  the 
matrix,  or  gangue,  of  all  veins  or  lodes.    By  its  pecu- 
liarities the  experienced  miner  easily  recognizes  the 
vein,  lode  or  ledge,  when  discovered.46    Ledge  or  vein 
matter,  of  itself,  may  not  warrant  a  location.47     The 
filling  of  the  vein  or  lode  must  be  considered  with 
special  reference  to  the  district  where  the  vein  or  lode 
is  found. 

36.  IN  PLACE.     The  term  "in  place"  indicates  the 
body  of  the  country  which  has  not  been  affected  by  the 
action  of  the  elements,  which  may  remain  in  its  orig- 
inal state  and  condition,  as  distinguished  from  the 
superficial  mass  which  may  lie  above  it.48 

37.  KOCK  IN  PLACE.    The  term  "rock  in  place"  has 
always  received  a  liberal  construction.    It  means  that 
which  is  inclosed  and  embraced  in  the  fixed  and  im- 


1-1  VEIN,  LODE  AND  LEDGE.  [Ch.  8 

movable  rock  forming  the  general  mass  of  the  moun- 
tain as  distinguished  from  merely  on  the  surface,  or 
covered  only  by  float,  wash,  slide,  soil,  waste,  drift, 
debris,  boulders  and  gravel.49 

It  does  not  mean  merely  hard  rock,  merely  quartz 
rock,  but  any  combination  of  rock  broken  up,  mixed 
up  with  minerals  and  other  things.50  It  is  not  mate- 
rial where  the  rock  or  mineral  was  originally  formed 
or  deposited51 ;  if  it  is  in  its  original  position,  although 
somewhat  broken  up  and  shattered  by  the  movement 
of  the  country  or  other  causes,  it  is  in  place.52  It  is 
immaterial,  if  in  its  original  place,  that  the  vein  or 
lode  matter  is  loose,  broken,  disintegrated,  or  solid 
material.53 

38.  OTHER  ROCK  IN  PLACE.    The  term  "other  rock 
in  place/'  as  used  in  the  mining  act,  means  any  rocky 
substance  containing  mineral  matter.54 

39.  VEIN  OR  LODE  IN  PLACE.    A  vein  or  lode  is  in  • 
place  if  the  mineral  is  continuous  to  the  extent  that  it 
may   maintain  that  character,   whether   deposited   in 
that  form  or  removed  bodily  with  its  inclosing  rocks 
to  the  place  in  which  it  may  be  found.55 

40.  VEIN  OR  LODE  NOT  IN  PLACE.     A  vein  or  lode 
cannot  be  in  place  unless  it  is  writhin  the  general  mass 
of  the   mountain.     It  must  be   inclosed  by   or   held 
within  the  general  mass  of  fixed  and  immovable  rock. 
It  is  not  enough  to  find  the  vein  or  lode  lying  on  the 
top  of  fixed  or  immovable  rock,  for  that  which  is  on 
top  is  not  within,  and  that  which  is  without  the  rock 
in  place  cannot  be  said  to  be  within  it,  and  the  min- 
eral  must  be  in   place  within  definite  boundaries.56 
A  vein  or  lode  is  not  in  place  if  not  fixed  in  rock 
—in  a  loose  state  57  or  if  found  lying  on  the  top  of 
fixed  or  immovable  rock.58 

41.  COUNTRY  ROCK.     Country  or  neighboring  rock 
designates  the  mass  of  rock,  whether  granite,  gneiss, 
syenite,  porphyry,  or  any  other  of  the  many  different 


§  50]  OUTCROPPINGS.  73 

kinds  of  rock  which  may  surround  arid  inclose  a  vein 
or  lode.59 

42.  HORSE.    An  intrusion  of  country,  or  neighbor- 
ing rock,  into  a  vein  or  lode  is  called  a  "horse"  or 
"rider."  60 

43.  DYKES.      Dykes    are    characteristically   of   ig- 
neous rocks  and  are  matter  between  or  through  sedi- 
mentary beds.61 

44.  OUTCROPPINGS.    Outcroppings  are  the  edges  of 
the  strata  appearing  at  the  surface  of  the  ground  or 
which  appear  immediately  under  the  soil  and  surface 
debris.02     They  relate  to  the  vein  or  lode  and  mean 
the  presentation  of  the  mineral  to  the  naked  eye  on 
the  surface  of  the  earth.63     The  term  "outcrop"  or 
"outcroppings"  is  sometimes  used  synonymously  with 
the  terms  "top"  and  "apex."  64 

45.  IDENTITY  OF  VEIN  AND  OUTCROP.    The  vein  or 
lode  which  the  miner  pursues  from  its  outcrop  must, 
of  course,  be  the  same  which  he  pursues  outside  of  his 
side  lines.65 

46.  OUTCROPPINGS  NOT  ESSENTIAL.    While  it  is  on 
the  line  of  the  croppings  that  lode  claims  are  most 
generally,   but    not    always  accurately,  laid  without 
regard  to  the  surface,  whether  level  or  inclined,66  it 
is  not  necessary  that  the  vein  or  lode  shall  crop  upon 
the  surface  that  locations  may  be  made  upon  it.     If 
the  vein  or  lode  lies  entirely  beneath  the  surface  its 
course  may  be  ascertained  by  underground  work  at 
different  points,  or  if  slightly  covered  by  foreign  mat- 
ter the  course  of  the  apex  may  be  ascertained  by  ordi- 
nary   surface    explorations    and    locations    be    made 
substantially  following  its  course.67 

A  location  is  not  invalid  because  its  length  is  not 
along  the  vein  or  lode.68 

47.  TOP  OR  APEX.     The  term  "top  or  apex,"  as 
used  synonymously,  may  mean  either  a  point  G9  or  a 
line  of  great  length,70  and  designates  the  summit  or 


74  VEIN,  LODE  AND   LEDGE. 

edge  of  a  vein  or  lode  on,71  or  at  any  depth,  below 
the  surface,72  if  it  should  be  a  "blind"  vein  or  lode. 

48.  HIGHEST  POINT.     The  highest  point  in  a  vein 
or  lode  is  the  ascent  along  the  line  of  its  dip  or  out- 
croppings  and  beyond  which  the  vein  or  lode  extends 
no  further,  so  that  it  is  the  end  or  reversely  the  be- 
ginning of  the  vein  or  lode.73 

49.  LEGAL  TOP  OR  APEX.    For  the  purpose  of  dis- 
covery and  purchase  under  the  mining  act,  the  legal 
apex  or  top  of  a  vein  or  lode  dipping    out    of   the 
ground  disposed  of  under  the  placer  or  non-mineral 
laws  is  that  portion  of  the  vein  or  lode  within    the 
public  lands  which  would  constitute  its  actual  apex 
if  the  vein  or  lode  had  no  actual  existence  in  the 
ground  previously  disposed  of.74 

50.  DISCOVERY  OF  TOP  OR  APEX.     Any  portion  of 
the  apex  on  the  course  or  strike  of  the  vein  or  lode 
within  the  limits  of  the  claim  is  sufficient  discovery" 
to  entitle  the  locator  to  obtain  title.75    The  vein  or  lode 
beyond  the  end  lines  of  the  claim  is  subject  to  further 
discovery  and  location.76 

51.  LOCATION  MUST  INCLUDE  TOP  OR  APEX.     A 
location  of  a  lofie  claim  must  be  upon  the  top  or  apex 
of  a  vein  or  lode  in  order  to  enable  the  locator  to  per- 
fect his  location  and  obtain  title.77 

52.  COURSE  OR  STRIKE.     The  course  or  strike  of  a 
vein  or  lode  is  the  direction  of  the  vein  or  lode  across 
or  through  the  country.78 

53.  PRACTICAL  EULE.    The  most  practical  rule  is  to 
regard  the  course  of  the  vein  or  lode  as  that  which 
is  indicated  by  surface  outcrop  or  surface  explorations 
and  workings.79 

54.  FOLLOWING  COURSE  OR  STRIKE.    To  follow  the 
course,  strike  or  trend  is  to  work  lengthwise  of  the 
vein  or  lode  on  a  level,  that  is,  advancing  along  the  vein 
or  lode,   neither  rising  towards  the   surface  of  the 
ground  nor  descending,  but  going  on  a  level  with  the 


§  50]  DOWNWARD  COURSE — WALLS.  75 

plane  of  the  earth's  surface  80  within  the  perpendic- 
ular planes  of  the  end  lines  of  the  location,  whether 
this  be  more  upon  the  course  or  strike  than  the  dip  of 
the  vein  or  lode.81 

55.  DIP  OR  DOWNWARD  COURSE.  The  term  "dip" 
is  a  miner's  word  not  found  in  the  mining  act.  The 
term  there  used  is  "downward  course,"  which  is  syn- 
onymous with  the  term  "dip." 

The  direction  of  the  vein  or  lode  as  it  goes  down- 
ward into  the  earth  is  called  the  dip.  It  may  vary 
from  a  perpendicular  to  the  earth's  surface  to  an  angle 
perhaps  only  a  few  degrees  below  the  horizon.  The 
same  vein  or  lode  may  have  different  dips.82 

'56.  MEASURING  DIP.  It  is  practically  the  universal 
custom  to  measure  the  dip  by  its  angular  deflection 
from  the  horizontal.  A  dip  of  20  degrees  means  20 
degrees  from  the  horizontal. 

57.  EASEMENT  OR  SERVITUDE.    The  right  to  follow 
the  dip,  also  termed  the  "extra-lateral"  right,  is  a  sort 
of  easement  or  servitude  laid  upon  the  mining  claim 
adjoining.83 

58.  FOLLOWING  THE  DIP.     The  miner  follows  the 
dip  of  the  vein  or  lode  when  he  works  downward, 
leaving  the  apex  further  from  and  above  him  at  each 
advance.84 

59.  WALLS  OF  VEIN  OR  LODE.    The  term  "wall"  in 
mining  parlance  is  a  body  of  rock  bounding  a  vein 
or  lode  on  either  or  both  sides  thereof  and  serving  as 
a  line  of  demarcation  between  the  vein  or  lode  and 
the  neighboring  or  country  rock.85    The  wall  rock  may 
be  barren  or  be  more  or  less  impregnated  with  min- 
eral.86 

A  wall  is  called  the  "hanging  wall"  or  the  "foot 
wall"  according  to  its  relative  position  to  the  vein  or 
lode  with  which  it  is  connected.87  Both  the  walls  of 
a  vein  or  lode  may  be  of  a  similar  character  as  to 
formation,88  yet  have  different  colors;  one  wall  may 


76  VEIN,  LODE  AND  LEDGE.  •  [Ch.  8 

be  composed  of  yellow  and  the  other  wall  be  of  purple 
porphyry  89  or  one  wrall  may  be  of  limestone  and  the 
complemental  wall  be  of  porphyry  90  or  other  dissim- 
ilar rocky  substances. 

60.  BOUNDARIES  OF  VEIN  OR  LODE.     To  the  prac- 
tical miner  the  walls,  in  connection  with  the  fissure, 
are  only  of  importance  as  indicating  the  boundaries 
within  which  he  may  look  for  and  reasonably  expect 
to  find  the  ore  he  seeks.91    It  is  not  essential  that  both 
walls  of  a  vein  or  lode  be  disclosed ;    their  existence 
and   continuance   may  be   determined   by   assay   and 
analysis.92     The  clay,  the  selvages,  slickensides,  stria- 
tion,  and  ribbing  of  the  walls  are  frequently  as  strong 
evidence  of  the  indication  of  permanency  and  con- 
tinuity as  the  existence  of  the  quartz  itself.93 

61.  INDICATIONS.     The  mere  indication  or  presence 
of  mineral  is  not  sufficient  to  establish  the  existence 
of  a  vein  or  lode.     The  mineral  must  exist  in  such- 
quantities   as   to   justify   the    expenditure   of   money 
for  the  development  of  the  mineral  and  the  extraction 
thereof.94 

62.  IMPREGNATIONS.     An  impregnation,  to  the  ex- 
tent to  which  it  may  be  traced  as  a  body  of  ore.  is  as 
fully  within  tfre  broad  terms  of  the  act  of  Congress 
as  any  other  form  of  deposit.95 

1.  Eureka  Co.  v.   Richmond   Co.,   8   Fed.   Cas.   4548;   Hayes   v. 

Lavagnino,   17  Utah   185. 

2.  Eureka  Co.  v.   Richmond  Co.,   ante;   Harrington  v.   Cham- 

bers, 3  Utah   94. 

3.  Eureka  Co.  v.  Richmond  Co.,   ante. 

4.  Synott  v.   Shaugnessy,   2  Ida,   (Hasb.)    122. 

5.  King  v.  Amy  Co.,  9  Mont.  543.     The  question  of  what  con- 

stitutes a  vein  or  lode  within  the  intent  of  different 
sections  of  the  mining  law  arises  (1)  between  miners 
who  have  located  on  the  same  vein  or  lode  (2)  between 
placer  and  lode  claimants  (30  between  mineral 'claim- 
ants and  townsite  patentees  (4)  between  mineral  and 
agricultural  claimants;  and  what  is  said  in  one  char- 
acter of  cases  may  or  may  not  be  applicable  in  the 
other,  and  must  always  have  a  special  reference  to  the 
formation  and  particular  characteristics  of  the  par- 
ticular district  in  which  the  vein  or  lode  is  found. 
Migeon  v.  Mont.  Cent.  Co.,  77  Fed.  249;'  Bonner  v. 


§  50]  VEIN,    LODE   AND    LEDGE.  77 

Meikle,  82  Fed.  697;  Fox  v.  Myers,  29  Nev.  169;  Grand 
Cent.  Co.  v.  Mammoth  Co.,  29  Utah  490. 

6.  See  Lawson  v.  U.  S.  Co.,  207  U.   S.   1;  Eureka  Co.  v.  Rich- 

mond  Co.,   ante. 

7.  U.  S.  v.  Iron  Co.,  128  U.  S.  673. 

8.  Bullion  Co.  v.  Croesus  Co.,  2   Nev.   168. 

9.  Hyman  v.  Wheeler,  29  Fed.  347;  Burke  v.  McDonald,  2  Ida. 

(Hasb.)  679.  A  lead  or  lode  is  not  an  imaginary  line 
without  dimensions.  It  is  not  a  thing  without  shape 
or  form;  but  before  it  can  legally  and  rightfully  be 
denominated  a  lead  or  lode  it  must  have  length,  width, 
and  depth.  It  must  be  capable  of  measurement.  It 
must  occupy  defined  space  and  be  capable  of  identifica- 
tion. Foote  v.  Nat.  Co.,  2  Mont.  402.  It  is  by  no  means 
always  a  straight  line  of  uniform  dip,  or  thickness,  or 
richness  of  mineral  matter  throughout  its  course.  Iron 
Co.  v.  Cheesman,  116  U.  S.  529. 

10.  For  a  collection  of  definitions  of  a  vein  or  lode  see  Hen- 

derson v.  Fulton,  35  L.  D.  652;  Book  v.  Justice  Co.,  58 
Fed.  106;  Beals  v.  Cone,  27  Colo.  473;  Fox  »v.  Myers, 
ante;  Grand  Cent.  Co.  v.  Mammoth  Co.,  ante.  In  some 
mining  districts  the  veins,  lodes  and  ore  deposits  are 
so  well  and  clearly  defined  as  to  avoid  any  questions 
being  raised.  In  other  localities  the  mineral  is  found 
in  seams,  narrow  crevices,  cracks  or  fissures  in  the 
earth,  the  precise  extent  and  character  of  which  can- 
not be  fully  ascertained  until  extensive  explorations 
are  made,  and  the  continuity  of  the  ore  and  the  exist- 
ence of  the  rock  in  place,  bearing  mineral  is  estab- 
lished. Book  v.  Justice  Co.,  ante. 

11.  Eureka  Co.  v.  Richmond  Co.,  ante. 

12.  Gregory  v.   Pershbaker,  71  Cal.   109. 

13.  Hyman  v.  Wheeler,  ante. 

14.  Id.;   Iron   Co.   v.   Cheesman,   ante;   U.   S.   v.   Iron   Co.,   ante; 

Eureka  Co.  v.  Richmond  Co.,  ante. 

15.  Burke  v.   McDonald,   ante.      Crevice   is   a   word   sometimes 

applied  to  a  mineral-bearing  vein.  St.  Anthony  Co.  v. 
Shaffra,  138  Wis.  507;  see  Shoshone  Co.  v.  Rutter,  87 
Fed.  801;  Empire  Co.  v.  Tombstone  Co.,  131  Fed.  339. 

16.  Iron  Co.  v.  Cheesman,  ante;  Cheesman  v.   Shreve,   40   Fed. 

787;  Tombstone  Co.  v.  Way  Up  Co.,   1  Ariz.  426. 

17.  Burke   v.   McDonald,   ante;    see   Hyman   v.   Wheeler,   ante; 

Con.  Wyoming  Co.  v.  Champion  Co.,  63  Fed.  540;  Beals 
v.  Cone,  ante. 

18.  Book  v.  Justice  Co.,  ante;  Cosmopolitan  Co.  v.  Foote,  101 

Fed.   518;  King  v.  Amy  Co.,  ante. 

19.  Synott  v.  Shaugnessy,  ante. 

20.  Crocker  v.  Manley,   164  111.  282. 

21.  Con.  Wyoming  Co.  v.  Champion  Co.,  ante. 

22.  Mt.  Diablo  Co.  v.  Callison,  17  Fed.  Cas.  9886. 

23.  Id.;  see  Doe  v.  Waterloo  Co.,  54  Fed.  935;  Grand  Cent.  Co. 

v.  Mammoth  Co.,  ante. 

24.  See   Lawson   v.   U.    S.   Co.,    ante;   Eureka  Co.   v.   Richmond 

Co.,  ante;  Hyman  v.  Wheeler,  ante;  U.  S.  Co.  v.  Lawson, 
134  Fed.  769;  Bullion  Beck  Co.  v.  Eureka  Co.,  5  Utah  3. 

25.  Bunker   Hill   Co.    v.    Empire    State   Co.,    134    Fed.    268;    see 

Grand  Central  Co.  v.  Mammoth  Co.,  ante.  See,  also, 
Mt.  Diablo  Co.  v.  Callison,  ante;  Waterloo  Co.  v.  Doe, 
82  Fed.  45. 


78  VEIN,  LODE  AND  LEDGE. 

26.  Eureka  Co.   v.   Richmond   Co.,   ante;   Book  v.   Justice   Co., 

ante;  St.  Louis  Co.  v.  Mont.  Co.,  104  Fed.  664;  Last 
Chance  Co.  v.  Bunker  Hill  Co.,  131  Fed.  579;  U.  S.  Co. 
v.  Lawson,  ante,  affd.  in  207  U.  S.  1. 

27.  Doe  v.  Waterloo  Co.,  ante. 

28.  Cheesman  v.  Shreve,  ante;   see  Justice  Co.  v.  Barclay,   82 

Fed.  554. 

29.  Calhoun  Co.  v.  Ajax  Co.,  27  Colo.  1. 

30.  Larkin  v.  Upton,  144  U.  S.  19. 

31.  Calhoun  Co.  v.  Ajax  Co.,  ante. 

32.  Iron   Co.   v.   Mike   &   Starr   Co.,   143   U.   S.    394;   Harper  v. 

Hill,    (Cal.)    113  Pac.   162. 

33.  Cosmopolitan  Co.  v.  Foote,  ante. 

34.  Ajax  Co.  v.  Hilkey,  31  Colo.  131.     Where  a  secondary  or 

accidental  vein  crosses  a  common  side  line  between 
two  mining  locations  at  an  angle  and  the  apex  of  the 
vein  is  of  such  width  that  it  is  for  a  given  distance 
partly  within  one  claim  and  partly  within  the  other, 
the  entire  vein  must  be  considered  as  apexing  upon  the 
senior  location  until  it  has  wholly  passed  beyond  its 
side  line  whether  the  vein  dips  towards  either  claim 
or  does  not  dip  at  all.  St.  Louis  Co.  v.  Mont.  Co.,  ante. 

35.  Cosmopolitan  Co.  v.  Foote,  ante. 

36.  Eureka  Co.  v.  Richmond  Co.,  ante. 

37.  Stinchfield  v.  Gillis,  96  Cal.  33. 

38.  Calhoun  Co.  v.  Ajax  Co.,  182  U.  S.  499;  Con.  Wyoming  Co. 

v.  Champion  co.,  ante;  Watervale  Co.  v.  Leach,  4  Ariz. 
34;    Champion  Co.  v.  Wyoming  Co.,  75  Cal.  78;    Lee  v.. 
Stahl,  13  Colo.  174. 

39.  Roxana   Co.    v.    Cone,    100    Fed.    168.      As    to   priority    see 

Little  Josephine  Co.  v.  Fullerton,  58  Fed.  521. 

40.  Rev.  Stats.  §  2336;  Wilhelm  v.  Silvester,  101  Cal.  358;  Omar 

v.  Soper,  11  Colo.  380;  §2336  Rev.  Stats,  does  not  con- 
flict with  §  2322  but  supplements  it.  Calhoun  Co.  v. 
Ajax  Co.,  ante. 

41.  Calhoun  Co.  v.  Ajax  Co.,  ante.     As  to  mining  claim  carved 

out  of  other  land  see  Stinchfield  v.  Gillis,  ante. 

42.  Iron  Co.  v.  Cheesman,  ante;  Grand  Cent.  Co.  v.  Mammoth 

Co.,  ante. 

43.  U.   S.   v.   Iron   Co.,   ante;    Mutchmor  v.   McCarty,   149   Cal. 

603.  A  vein  is  known  to  exist  within  the  meaning  of 
the  statute  (1)  when  it  is  known  to  the  placer  claim- 
ant; (2)  when  its  existence  is  generally  known;  (3) 
when  any  examination  of  the  ground  is  sufficient  to 
enable  the  placer  claimant  to  make  oath  that  it  is 
subject  to  location,  as  such  would  necessarily  disclose 
the  existence  of  the  vein.  Mutchmor  v.  McCarty,  ante. 
The  term  "known  vein"  is  not  synonymous  with 
"located  vein."  Iron  Co.  v.  Mike  &  Starr  Co.,  ante. 

44.  Iron  Co.  v.  Mike  &  Starr  Co.,  ante. 

45.  Id.;    Migeon  v.  Mont.  Cent.   Co.,   ante;    Mutchmor  v.   Mc- 

Carty, ante. 

46.  Burke  v.  McDonald,  ante. 

47.  Ter.    v.    Mackey,    8    Mont.    168;     see    Grand    Cent.    Co.    y. 

Mammoth  Co.,  ante. 

48.  Stevens  v.  Williams,  23  Fed.  Gas.  13414. 

49.  Iron  Co.  v.   Cheesman,   ante;   Leadville  Co.   v.   Fitzgerald, 

15  Fed.  Gas.  8158;  Stevens  v.  Gill,  23  Fed.  Cas.  13398; 
Stevens  v.  Williams,  ante;  Tabor  v.  Drexle.r,  23  Fed. 


§  50]  VEIN,   LODE   AND   LEDGE.  79 

Gas.  13723;  Iron  Co.  v.  Cheesman,  8  Fed.  297;  Meyden- 
bauer  v.  Stevens,  78  Fed.  787;  Jones  v.  Prospect  Co., 
21  Nev.  339. 

50.  See  note  49,  ante. 

51.  Jones  v.  Prospect  Co.,  ante. 

52.  Stevens  v.  Williams,   ante. 

53.  Id. 

54.  Rev.  Stats.  §  2320;  Stevens  v.  Williams,  23  Fed.  Cas.  13413. 

55.  See  note  49,  ante. 

56.  Jupiter  Co.  v.  Bodie  Con.  Co.,  11  Fed.  666. 

57.  Jones  v.  Prospect  Co.,  ante. 

58.  Tabor  v.  Drexler,  ante. 

59.  Leadville  Co.  v.  Fitzgerald,  ante. 

60.  Book  v.  Justice  Co.,  ante;  Con.  Wyoming  Co.  v.  Champion 

Co.,  ante. 

61.  Grand  Cent.  Co.  v.  Mammoth  Co.,  ante. 

62.  Duggan  v.  Davey,  4  Dak.  110. 

63.  Id.;  see  Empire  Co.  v.  Tombstone  Co.,  ante;  see  note  94, 

post. 

64.  Stevens  v.  Williams,  ante. 

65.  Cheesman  v.  Shreve,  ante. 

66.  Flagstaff  Co.   v.   Tarbet,   98   U.   S.   463;   Daggett  v.   Yreka 

Co.,  149  Cal.  357;  Empire  Co.  v.  Tombstone  Co.,  ante; 
Harper  v.  Hill,  ante. 

67.  Last  Chance  Co.  v.  Bunker  Hill  Co.,  ante.     Lodes  or  veins 

frequently  do  not  appear  upon  the  surface  except  at 
intervals.  Sometimes  they  do  not  appear  at  all.  The 
true  apex- or  middle  of  the  vein  may  not  be  accurately 
determined  except  by  extensive  excavations.  Veins 
do  not  run  in  straight  lines  throughout  their  courses, 
but  with  many  turns  and  angles.  Detached  masses 
projecting  above  the  surface  may  be  mistaken  for  the 
ledge  or  vein.  The  ore  may  occur  in  a  blanket  forma- 
tion having  no  distinct  apex.  Harper  v.  Hill,  ante. 

68.  Flagstaff  Co.  v.   Tarbet,   ante;   Iron   Co.   v.   Elgin  Co.,   118 

U.  S.  196. 

69.  Duggan  v.  Davey,  ante. 

70.  Larkin  v.  Upton,  ante;    see  note  66,  ante. 

71.  Duggan  v.  Davey,   ante;  Iron  Co.  v.  Murphy,  3  Fed.   368; 

see  Illinois  Co.  v.  Raff,  7  N.  M.  336. 

72.  Larkin  v.  Upton,  ante;  Iron  Co.  v.  Murphy,  ante.     A  swell 

in  a  vein  should  not  be  mistaken  for  its  true  apex. 
Stevens  v.  Williams,  ante. 

73.  Duggan  v.  Davey,  ante. 

74.  Woods  v.  Holden,  26  L.  D.  198.     What  is  the  top  or  apex 

of  a  vein  or  lode  is  a  question  of  fact  and  not  of  law. 
Blue  Bird  Co.  v.  Largey,  49  Fed.  289. 

75.  Larkin  v.  Upton,  ante. 

76.  Id. 

77.  Id.;    see  Brewster  v.  Shoemaker,  28  Colo.  176. 

78.  King  v.  Amy  Co.,  ante. 

79.  Flagstaff  Co.  v.  Tarbet,  ante;  see  Con.  Wyo.  Co.  v.  Cham- 

pion Co.,  ante. 

80.  King  v.  Amy  Co.,  ante. 

81.  Bunker  Hill  Co.  v.  Empire  State  Co.,  ante. 

82.  King  v.  Amy  Co.,  ante. 

83.  Mt.  Diablo  Co.  v.  Callison,  ante. 

84.  King  v.  Amy  Co.,  ante;  C.  C.  §  801,  subd.  5. 

85.  See  Grand  Cent.  Co.  v.  Mammoth  Co.,  ante. 

86.  Golden  v.  Murphy,    (Nev.)    103  Pac.   394. 


80  VEIN,  LODE  AND  LEDGE.  [Ch.  8 

87.  Cheesman  v.   Shreve,   ante;  Grand  Cent.   Co.  v.  Mammoth 

Co.,  ante. 

88.  Illinois  Co.  v.  Raff,   ante. 

89.  Book  v.  Justice  Co.,  ante;  Hyman  v.  Wheeler,  ante. 

90.  .Iron  Co.  v.  Cheesman,  ante. 

91.  Eureka  Co.  v.  Richmond  Co.,  ante. 

92.  Hyman  v.  Wheeler,  ante;  but  see  Grand  Cent.  Co.  v.  Mam- 

moth Co.,  ante. 

93.  Con.  Wyo.  Co.  v.  Champion  Co.,  ante. 

94.  Chrisman  v.  Miller,   197  U.   S.   313.     See  Steele  v.  Tanana 

Co.,  148  Fed.  G48;  Madison  v.  Octave  Oil  Co.,  154  Cal. 
768,  in  regard  to  placers.  See  Shoshone  Co.  v.  Rutter, 
87  Fed.  801;  McMillen  v.  Ferrum  Co.,  32  Colo.  38;  Am- 
bergris Co.  v.  Day,  12  Ida.  108,  in  relation  to  lode 
claims.  The  mere  existence  of  outcroppings  does  not 
constitute  a  mine.  There  must  be  evidence  of  the 
actual  value  of  the  deposit  to  establish  the  mineral 
value  of  the  land  to  render  it  mineral  land.  Colo.  Coal 
Co.  v.  U.  S.,  137  U.  S.  307;  Frees  v.  State,  22  L.  D.  510; 
see  Cascaden  v.  Bartolis,  162  Fed.  267. 

95.  Hyman  v.  Wheeler,  ante. 


CHAPTER   IX. 

GRUB  STAKE     CONTRACTS  —  MINING     PARTNERSHIPS — 
CO-TENANTS. 

§  57.  Grub  stake — in  general — nature  of  contract — trustees — 
essential  requisites  —  consideration — termination — ac- 
crued rights — duty  of  outfitter — duty  of  prospector — 
what  is  not  a  grub  stake. 

§  58.  Mining  partnerships — peculiar  rules  applicable — essen- 
tial difference  between  mining  and  general  partner- 
ships— how  created — general  partners — trustees — -con- 
trol— debts — Aliens — accounting — dissolution — sale. 

§  59.  Co-tenants — not  mining  partners — trustees — termination 
of  trust — corporation  not  co-tenant — incohate  rights — 
divestiture  of  title — exclusion  from  patent — when 
rights  barred— actions — questioning  title — working  the 
claim — accounting — contribution — liability  for  loss  and 
debts — adverse  possession. 

§  57.  Grub  Stake — In  General.  A  grub  stake  or 
prospecting  contract  is  an  agreement,  not  within  the 
Statute  of  Frauds  and,  therefore,  not  necessarily  in 
writing,*  except  in  Oregon1  and  Nevada,2  by  which 
one  of  the  parties  thereto  is  to  furnish  to  the  other 
supplies,  money,  or  both,  to  and  while  the  other  is 
prospecting  for  and  obtaining  mineral  land,  by  loca- 
tion, for  their  joint  advantage  or  in  such  proportions 
as  may  be  agreed  upon.3 


§  57]  GRUB  STAKE.  81 

2.  NATURE  OP  CONTRACT.     The  contract  is  in  the 
nature  of  a  qualified  partnership.4    It  does  not  consti- 
tute a  "mining  partnership"  unless  the  parties  thereto 
actually  engage  in  the  joint  working  of  property,5 
otherwise  the  parties  are  tenants  in  common  in  the 
property  acquired.6 

3.  TRUSTEES.    As  the  parties  are  trustees  or  agents 
for  each  other  in  the  prosecution  of  the  joint  adven- 
ture,7 all  locations  made  during  the  existence  of  the 
partnership  inure  to  the  benefit  of  each,  whether  made 
in  the  name  of  only  one  of  them,  or  in  the  name  of  a 
third  person,  at  the  instigation  of  either.8 

4.  ESSENTIAL  REQUISITES.    In  order  to  have  a  right 
in  property  under  the  grub  stake  it  is  essential  tha  t 
the  property  was  acquired  by  means  of  the  grub  stake 
and  pursuant  to  the  provisions  of  the  grub-stake  con- 
tract.9 

5.  CONSIDERATION.     The   contract  must    be    based 
upon  an  adequate  consideration  and  be  clear,  definite', 
just  arid  reasonable.10 

6.  TERMINATION.    The  contract  may  expire  by  lim- 
itation of  time,  be  dissolved  by  mutual  consent,11  or, 
if  its  terms  permit,  at  the  option  of  either  party,12  be 
abandoned  or  become  impracticable.13 

7.  ACCRUED  RIGHTS.     Accrued  rights  are  not  dis- 
turbed by  its  termination,14  and  in  the  absence  of 
fraud  either  party  may  locate  unappropriated  discov- 
eries known  to  him  during  the  existence  of  the  con- 
tract.15 

8.  DUTY  OP  OUTFITTER.     The  outfitter  must  fur- 
nish the  supplies  agreed  upon  or  the  contract  will 
fail.16 

9.  DUTY  OF  PROSPECTOR.     It  is  the  duty  of  the 
prospector  to  use  reasonable  diligence  and  make  rea- 
sonable exertions  in  seeking  mineral  deposits,17  and 
within  a  reasonable  time  make  proper  location  cov- 
ering discovery.18 


82  GRUB-STAKE   CONTRACTS,    ETC.  [Ch.  9 

10.  WHAT  is  NOT  A  GRUB  STAKE.  Payment  of 
wages  and  promising  to  give  the  prospector  an  interest 
in  property  obtained  is  not  a  grub-stake  contract,  but 
one  of  hiring.19  Neither  is  an  exchange  of  interests 
in  subsisting  claims  such  a  contract.20 

*    Hendricks   v.   Morgan,   167   Fed.    106;   Murley  v.   Ennis,    2 
Colo.  300;  Hardin  v.  Hardin,  (S.  Dak.)   129  N.  W.  108. 

1.  Or.  Stats.  1-898,  p.  18;  Ball.  Codes  §3985. 

2.  Nev.  Stats.  1907,  p.  370. 

3.  Berry  v.  Woodburn,  107  Cal.  504;    Meylette  v.  Brennan,  20 

Colo.    242;    Costello   v.    Scott,    30    Nev.  43;    Hartney   v. 

Gosling,  10  Wyo.  346;  see  Ida.  C.  C.  §2784;  see  Ida. 
Stats.  1899,  p.  366. 

4.  Berry    v.    Woodburn,    ante;    Meylette    v.  Brennan,    ante; 

Hisbour  v.  Reeding,  3  Mont.  15;  see  Prince  v.  Lamb, 
128  Cal.  120;  Hartney  v.  Gosling,  ante;  see  Lawrence  v. 
Robinson,  4  Colo.  567. 

5.  Skillman  v.   Lachman,   23   Cal.   198;  Dorsey  v.  Newcomer, 

121  Cal.  213;  Manville  v.  Parks,  7  Colo.  128;  Anaconda 
Co.  v.  Butte  &  Boston  Co.,  17  Mont.  519. 

6.  G.  V.  B.  Mg.  Co.  v.  Bank,  95  Fed.  35;  Cascaden  v.  Dunbar, 

2  Alaska  408;  Marks  v.  Gates,  2  Alaska  519;  Gore  v. 
McBrayer,  18  Cal.  582;  Hartney  v.  Gosling,  ante. 

7.  Shea  v.  Nilima,  133  Fed.  209;  Hendricks  v.  Morgan,  ante;- 

Settembre  v.  Putnam,  30  Cal.  490;  Moritz  v.  Lavelle,  77 
Cal.  10;  Stewart  v.  Douglass,  148  Cal.  511;  Byrne  v. 
Knight,  12  Cal.  A.  56;  Jennings  v.  Rickard,  10  Colo. 
395;  Meagher  v.  Reed,  14  Colo.  356;  Hardin  v.  Hardin, 
ante.  See  Botsford  v.  Van  Riper,  (Nev.)  110  Pac.  705. 

8.  Delmonico  v.  Roudebush,  5  Fed.  165;  Shea  v.  Nilima,  ante. 

It  is  immaterial  to  his  rights  whether  the  trustor's 
name  is  inserted  in  the  location  notice  or  not.  Byrne 
v.  Knight,  ante;  Hardin  v.  Hardin,  ante;  see  Moore  v. 
Hammerstag,  109  Cal.  122. 

9.  Prince   v.    Lamb,    ante;    see    Cascaden    v.     Dunbar,    ante; 

Marks  v.  Gates,  ante. 

30.  Cisna  v.  Mallory,  84  Fed.  851;  Marks  v.  Gates,  154  Fed. 
481;  Cascaden  v.  Dunbar,  ante;  Copper  River  Co.  v. 
M'Clellan,  2  Alaska  134;  Prince  v.  Lamb,  ante;  Rice 
v.  Rigley,  7  Ida.  115;  Morrow  v.  Matthew,  10  Ida.  423; 
see  Stewart  v.  Douglass,  ante;  Brown  v.  Bowman,  119 
Ga.  153.  See  Martin's  Min.  Law,  §§  379-380. 

11.  Page  v.  Summers,   70  Cal.   121;  McLaughlin  v.  Thompson, 

2  Colo.  A.  135;  see,  also,  McKenzie  v.  Coslett,  28  Nev.  65. 

12.  Lawrence  v.  Robinson,  ante. 

13.  Roberts  v.  Date,  123  Fed.  238;  Eubanks  v.  Petree,  1  Alaska 

427;  Miller  v.  ButterHeld,  79  Cal.  62;  Murley  v.  Ennis, 
ante;  McLaughlin  v.  Thompson,  ante;  see  McGahey 
v.  Oregon  Co.,  165  Fed.  86. 

14.  Lawrence  v.  Robinson,  ante. 

15.  Page  v.  Summers,  ante;  see  also,  note  7,  ante. 

16.  Prince  v.  Lamb,   ante;  but  see  Byrne  v.  Knight,  ante,  in 

which  it  is  held  that  the  fact  that  the  prospector  after- 
wards pays  for  the  supplies  does  not  invalidate  the 
contract;  see  Murley  v.  Ennis,  ante. 


§  58]  MINING  PARTNERSHIPS'. 

17.  See  Skidmore  v.  Eikenberry,  53  Iowa  621;    Ray  v.  Hodge, 

15  Or.  20. 

18.  Murley  v.  Ennis,  ante. 

19.  Berry  v.  Woodburn,  ante. 

20.  Roberts  v.  Date,  ante. 

§  58.  Mining  Partnerships.  Mining  partnerships 
are  distinct  associations  with  different  liabilities  at- 
taching to  members  of  ordinary  partnerships.1 

2.  PECULIAR  RULES  APPLICABLE.    Many  of  the  rules 
of  general  partnership  obtain  in  mining  partnerships, 
but  the  latter  have  some  rules  peculiar  to  themselves.2 

3.  ESSENTIAL  DIFFERENCE  BETWEEN  MINING  AND 
GENERAL  PARTNERSHIPS.     The  essential  difference  is 
that  dissolution  does  not  result  from  the  death  or 
bankruptcy  of  a  partner,3  and  a  partner  has  no  right 
to  decide  what  new  partners  shall  be  admitted  to  the 
firm.4 

4.  How  CREATED.    A  mining  partnership  is  created 
when  the  owners  of  a.  mining  claim  or  shares  therein, 
or  lessees  of  a  mining  claim  unite  in  the  actual  work- 
ing of  such  claim  for  the  purpose  of  extracting  min- 
eral therefrom,  sharing  the  losses  and  profits  arising 
from  such  working,  although  no  express  agreement 
to  form  a  partnership  is  entered  into  between  them.5 

5.  GENERAL  PARTNERS.     The  parties  may  become 
general  partners  as  a  result  of  their  own  agreement.6 

6.  TRUSTEES.     The  partners  are  in  the  relation  of 
trustees  for  each  other.7 

7.  CONTROL.     The  property  worked  and  the  busi- 
ness of  the  firm  may  be  controlled  by  a  majority  of 
the  members  of  the  partnership  acting  for  the  best 
interests  of  all  concerned.8 

8.  DEBTS.     Each  partner  is  jointly  liable  for  the 
debts  of  the  firm.9 

9.  LIENS.     The  property  worked  is  not  necessarily 
property  owned  by  the  partnership  ;10  if  it  be  so,  it  is 
subject  to  the  lien  of  each  member  of  the  firm  for  debt 
due  to  himself  or  to  the  creditors  of  the  firm.11 


84  GRUB-STAKE   CONTRACTS,    ETC.  [Ch.  9 

10.  ACCOUNTING.    One  mining  partner  may  sue  his 
co-partner  for  an  accounting.12 

11.  DISSOLUTION.      The    partnership   may   be   dis- 
solved at  the  will  of  one  of  the  partners  13  or  by  the 
abandonment 14  or  sale  of  the  property.15 

12.  SALE.     A  partner  may  properly  sell  his  inter- 
est   at    a   greater   price   than   that   received   by   the 
others.16 

1.   Kahn   v.    Smelt.    Co.,    102    U.    S.    641;    Congdon   v.    Olds,    18 

Mont.  487. 
2.'Skillman  v.  Lachman,  23  Cal.   198;  Congdon  v.  Olds,  ante. 

The  law  of  California  provides  that:  §  2511.  A  min- 
ing partnership  exists  when  two  or  more  persons  who 
own  or  acquire  a  mining  claim  for  the  purpose  of 
working  it  and  extracting  the  mineral  therefrom  actu- 
ally engage  in  working  the  same. 

§  2512.  An  express  agreement  to  become  partners  or 
to  share  the  profits  and  losses  of  mining  is  not  neces- 
sary to  the  formation  or  existence  of  a  mining  part- 
nership. The  relation  arises  from  the  ownership  of 
shares  or  interests  in  the  mine  and  working  the  same 
for  the  purpose  of  extracting  the  minerals  therefrom. 

§  2513.  A  member  of  a  mining  partnership  shares   in  * 
the  profits  and  losses  thereof  In  the  proportion  which 
the  interest  or  share  he  owns  in  the  mine  bears  to  the 
whole  partnership  capital  or  whole  number  of  shares. 

§  2514.  Each  member  of  a  mining  partnership  has  a 
lien  on  the  partnership  property  for  the  debts  due  the 
creditors  thereof,  and  for  money  advanced  by  him  for 
its  use.  This  lien  exists  notwithstanding  there  is  an 
agreement  among  the  partners  that  it  must  not. 

§  2515.  The  raining  ground  owned  and  worked  by 
partners  in  mining,  whether  purchased  with  partner- 
ship funds  or  not,  is  partnership  property. 

§  2516.  One  of  the  partners  in  a  mining  partnership 
may  convey  his  interest  in  the  mine  and  business  with- 
out dissolving  the  partnership.  The  purchaser,  from 
the  date  of  his  purchase,  becomes  a  member  of  the 
partnership. 

§  2517.  A  purchaser  of  an  interest  in  the  mining 
ground  of  a  mining  partnership  takes  it  subject  to  the 
liens  existing  in  favor  of  the  partners  for  debts  due 
all  creditors  thereof,  or  advances  made  for  the  benefit 
of  the  partnership,  unless  he  purchases  in  good  faith, 
for  a  valuable  consideration,  without  notice  of  such 
lien. 

§  2518.  A  purchaser  of  the  interest  of  a  partner  in  a 
mine  when  the  partnership  is  engaged  in  working  it, 
takes  with  notice  of  all  liens  resulting  from  the  rela- 
tion of  the  partners  to  each  other  and  to  the  creditors 
of  the  partnership. 

§  2519.  No  member  of  a  mining  partnership  or  other 
agent  or  manager  thereof  can,  by  a  contract  in  writ- 
ing, bind  the  partnership,  except  by  express  authority 
derived  from  the  members  thereof. 


§  59]  GO-TENANTS.  85 

§  2520.  The  decision  of  the  members  owning  a  ma- 
jority of  the  shares  or  interests  in  a  mining  partner- 
ship binds  it  in  the  conduct  of  its  business.  C.  C., 
§§  2511-2520. 

3.  Jones  v.  Clark,  42  Cal.  180;    Higgins  v.  Armstrong,  9  Colo. 

38;  Boeme  v.  Fitzgerald,  (Mont.)  115  Pac.  413;  Bently 
v.  Brossard,  33  Utah,  396;  Hartney  v.  Gosling,  10  Wyo. 
346. 

4.  Jones  v.  Clark,  ante;    Patrick  v.  Weston,  22  Colo.  45;  see 

Bissel  v.  Foss,   114  U.  S.  252. 

5.  Loy  v.  Alston,   172  Fed.  90;    Ferris  v.  Baker,   127  Cal.   520; 

Walker  v.  Bruce,  44  Colo.  109;  Anaconda  Co.  v.  Butte 
&  Boston  Co.,  17  Mont.  519;  Congdon  v.  Olds,  ante; 
Kirchner  v.  Smith,  61  W.  Va.  434;  see  Chung  Kee  v. 
Davidson,  102  Cal.  188;  Vietti  v.  Nesbitt,  22  Nev.  390. 

6.  Decker    v.    Howell,    42    Cal.    636;    Congdon    v.    Olds,    ante; 

Hartney  v.  Gosling,  ante. 

7.  Gore  v.   McBrayer,   18   Cal.   582;   Con.  Divide  Co.   v.   Bliley, 

23  Colo.  160;  see  Bissel  v.  Foss,  ante. 

8.  Dougherty   v.    Cleary,    30    Cal.    291;    Jones   v.    Clark,    ante; 

Patrick  v.  Weston,  ante;  Congdon  v.  Olds,  ante;  Hart- 
ney v.  Gosling,  ante;  see  Edinger  v.  So.  Oil  Co.,  (W. 
Va.)  71  S.  B.  266. 

9.  Hailey  v.   G.  V.  B.   Co.,   89  Fed.   449;     Stuart  v.  Adams,   89 

Cal,   367. 

10.  Settembre    v.    Putnam,    30    Cal.    490;    Hartney    v.    Gosling, 

ante. 

11.  G.  V.  B.  Co.  v.  Hailey,  95  Fed.  35;  Duryea  v.  Burt,  28  Cal. 

569;  see  Brunswick  v.  Winters,  3  N.  M.  386. 

12.  Howard  v.  Luce,   171  Fed.   584. 

13.  Lawrence  v.  Robinson,  4  Colo.  567. 

14.  Larsh  v.  Boyle,  36  Colo.  18. 

15.  Dellapiazza  v.   Foley,   112  Cal.  380;  but  see  Kahn  v.  Cent. 

Smelt.  Co.,  ante;  Kimberly  v.  Arms,  129  U.  S.  512. 

16.  Harris  v.  Lloyd,  11  Mont.  390. 

§  59.     Co-tenants.      Co-tenancy    arises    from     the 
joint  location  of  or  ownership  in  a  mining  claim.1 

2.  NOT    MINING    PARTNERS.      Co-tenants    are    not 
"mining  partners"  unless  they  unite  in  working  the 
claim.2 

3.  TRUSTEES.    A  co-tenant  becomes  a  trustee  for  his 
co-tenants  when  he  re-locates  the  claim  3  or  permits 
its  re-location  by  a  third  person  with  whom  he  is  in 
collusion,  unless  there  has  been  due  severance  of  the 
relations  of  co-tenancy  4  or  he  obtains  patent  in  his 
own  name  for  the  claim  held  in  co-tenancy5  or  pur- 
chases an  outstanding  title  to  such  claim.6 

4.  TERMINATION  OP  TRUST.     The  trust  may  be  ter- 
minated by  agreement  or  laches  7  or  by  the  statute  of 
limitations.8 


86  GRUB-STAKE   CONTRACTS,    ETC.  [Ch.  9 

5.  CORPORATION  NOT  CO-TENANT.    A  stockholder  in 
a  corporation  is  in  no  sense  a  co-tenant  with  the  cor- 
poration nor  with  the  other  shareholders  of  the  cor- 
porate property.9 

6.  INCHOATE  RIGHTS.    The  holder  of  a  sheriff's  cer- 
tificate of  purchase  under  an  execution  sale  and  as 
the  assignee  of  judgments  which  are  liens  against  the 
claim  or  interest  therein  is  not  a  co-tenant.10 

7.  DIVESTITURE  OP  TITLE.    The  title  of  a  co-tenant 
may  be  divested  by  failure  of  the  other  co-tenants  to 
make  the  annual  expenditure  on  the  claim,  although 
they  may  have  agreed  with  him  to  make  the  same ; 1:L 
or  by  his  failure,  after  due  notice,  to  contribute   his 
proportion  of  such  expenditure ; 12  or  by  the  actual 
adverse   possession  for  the  statutory  period  of  the 
other  co-tenants,  or  some  one  of  them,13  evidenced  by 
ouster ; 14  or  by  their  obtaining  a  patent  from  the  gov- 
ernment in  their  own  names.15 

8.  EXCLUSION  FROM  PATENT.    A  co-owner  excluded 
by  his  co-tenants  from  an  application  for  a  United 
States  patent  may,16  but  he  is  not  compelled  to,  file  an 
adverse    claim 17    or    a    protest 18    or    institute    legal 
proceedings  to  enforce  the  trust  during  the  pendency 
of  patent  proceedings; 19  although  he  may  so  do.20 

9.  WHEN  EIGHTS  BARREQ.    The  excluded  co-tenant 
may  maintain  a  suit  to  enforce  the  trust  after  the 
issuance  of  the  patent  to  the  excluding  co-tenants21 
when  not  barred  by  laches,  the  statute  of  limitations, 
or  the  intervention  of  the  rights  of  third  parties,  with- 
out notice.22 

10.  ACTIONS.    A  co-tenant  may  maintain  an  action 
for  the  recovery  of  the  claim  without  joining  his  co- 
tenants.23 

11.  QUESTIONING  TITLE.    A  co-tenant  cannot  ques- 
tion the  common  title  upon  a  contest  between  him  and 
his  co-owners;   nor  purchase  an  adverse  title  and  set 
it  up  against  his  co-tenants  if  they  are  willing  to  reim- 


§  59]  CO-TENANTS.  87 

burse  him  for  the  amount  so  expended  24  within  a  rea- 
sonable time,  or  offer  to  contribute  their  proportion 
thereof,  provided  that  the  purchasing  co-tenant  wishes 
to  be  paid  and  conducts  himself  accordingly.25 

12.  WORKING  THE  CLAIM.     In  the  absence    of    a 
local  statute  prohibiting  such  action  26  or  an  agree- 
ment to  the  contrary  between  the  co-tenants,  a  co- 
tenant  who  does  not  exclude  his  co-tenants. may  work 
the  claim  and  remove  mineral  therefrom  without  being 
charged  with  waste  or  liable  to  the  other  co-tenants 
for  damages  or  subject  to  an  injunction  at  the  instance 
of  his  co-tenants.27 

13.  ACCOUNTING.     The  working  co-owner  is  liable 
to  the  non-participating  or  non-assenting  co-owners 
for  their  pro  rata  share  in  the  net  results.28 

14.  CONTRIBUTION.     In  the  absence  of  a  ratifica- 
tion the  operating  co-owner  has  no  claim  for  contribu- 
tion from  them  29  except  in  a  partition  suit  where  the 
court  may  adjust  the  equities  between  them.30 

15.  LIABILITY  FOR  Loss  AND  DEBTS.    As  a  rule  the 
working  co-tenant  must  alone  sustain  any  loss  which 
results  from  his  working  of  the  property,  and  he  is 
alone  responsible  for  the  debts  thereby  contracted.31 

16.  ADVERSE  POSSESSION.     Hostility  of  possession 
under  claim  of  title  exclusive  of  any  other  right  will 
conclude  the  right  of  the  excluded  co-tenants,  if  con- 
tinued for  sufficient  time  under  the  statute  of  limi- 
tations,32 and  bar  an  accounting.33 

1.  Lockhart  v.  Leeds,  195  U.  S.  427;    Morton  v.  Solambo  Co., 

26  Cal.  527;  Morenhaut  v.  Wilson,  52  Cal.  263;  Chase 
v.  Savage  Co.,  2  Nev.  14;  Elder  v.  Horseshoe  Co.,  9  S. 
Dak.  636. 

2.  Madar   v.   Norman,    13    Ida.    585;     Hartney   v.    Gosling,    10 

Wyo.  346. 

3.  Hunt  v.  Patchin,  35  Fed.  816;    Stevens  v.  Grand  Cent.  Co., 

133  Fed.  28;  Yarwood  v.  Johnson,  29  Wash.  643.  See 
Turner  v.  Sawyer,  150  U.  S.  578. 

4.  Strang  v.  Ryan,   46   Cal.   34;    Doherty  v.  Morris,   11  Colo. 

12;  Saunders  v.  Mackey,  5  Mont.  523. 

5.  Stevens  v.  Grand  Cent.  Co.,  ante. 

6.  Franklin  Co.  v.   O'Brien,   22  Colo.   129;   Cedar  Canyon   Co. 

v.  Yarwood,  27  Wash.  271. 


88  GRUB-STAKE   CONTRACTS,    ETC.  [Ch.  9 

7.  Patterson  v.   Hewitt,   195   U.   S.   309;     Holt  v.   Murphy,   207 

U.   S.    407. 

8.  Gregory  v.  Gregory,   102  Cal.  50. 

9.  Repeater  Claims,  35  L.  D.  54;    see  §223,  post. 

10.  Turner  v.  Sawyer,  ante. 

11.  Stuart  v.  Adams,  89  Cal.  367. 

12.  Rev.    Stats.,    §2324;     Faubel    v.    McFarland,    144    Cal.    717; 

Elder  v.  Horseshoe  Co.,  194  U.  S.  248;  see  Haynes  v. 
Briscoe,  29  Colo.  137;  see  §200,  post. 

13.  Feliz  v.  Feliz,  105  Cal.  1. 

14.  Union  Co.  v.  Taylor,  100  U.  S.  37. 

15.  Stevens  v.  Grand  Central  Co.,  ante;    Suessenback  v.  Bank, 

5  Dak.  477;    see  Wetzstein  v.  Largey,   27  Mont.  212. 

16.  Gold   Dirt   Lode,    10    C.    L.   O.    19;     Davidson   v.    Fraser,    36 

Colo.  1;    Mattingly  v.  Lewisohn,  8  Mont.  259. 

17.  Turner  v.  Sawyer,  ante. 

18.-Coleman  v.  Homestake  Co.,  30  L.  D.  364;  Thomas  v. 
Elling,  25  L.  D.  495;  Golden  and  Cord  Claims,  31  L.  D. 
178. 

19.  Davidson  v.  Fraser,  ante. 

20.  Malaby  v.  Rice,  15  Colo.  A.  364. 

21.  Turner  v.  Sawyer,  ante;    Stevens  v.  Grand  Cent.  Co.,  ante; 

Thomas  v.  Elling,  ante;    Suessenback  v.  Bank,  ante. 

22.  Reed  v.  Munn,  148  Fed.  737;    Davidson  v.  Fraser,  ante. 

23.  Morenhaut   v.    Wilson,   ante;    see   Union    Co.   v.   Dangberg, 

81  Fed.  73.  The  judgment  in  such  case  will  be  in  sub- 
ordination to  the  rights  of  the  other  co-tenants.  Hardy 
v.  Johnson,  68  U.  S.  371. 

24.  Cedar  Canyon  Co.  v.  Yarwood,  ante. 

25.  Boskowitz  v.  Davis,  12  Nev.  446. 

26.  Butte  &  Boston  Co.  v.  Mont.  Co.,  24  Mont.  125. 

27.  McCord   v.    Oakland   Co.,    64    Cal.    134;     Downing   v.    Rade- 

macher,  133  Cal.  220;  see  Hawkins  v.  Spokane  Co.,  3 
Ida.  (Hasb.)  241;  Russell  v.  Bank,  47  Minn.  288. 

28.  Paul    v.    Cragnaz,    25    Nev.    293.      An    accounting    may    be 

compelled  by  either  of  the  parties  holding  a  majority 
or  minority  interest  in  a  mine,  of  work  done  and 
metals  extracted.  Hawkins  v.  Spokane  Co.,  ante. 

29.  Stickley  v.  Mulrooney,  36  Colo.  242.     While  the  operating 

co-tenant  may,  in  case  he  is  called  upon  to  account  for 
profits,  set  off,  as  against  a  non-operating  co-tenant, 
the  cost  of  the  necessary  improvements,  he  must  show 
that  such  improvements  were  necessary  and  added  to 
and  enhanced  the  value  of  the  common  property. 
Wolfe  v.  Childs,  42  Colo.  121. 

30.  Neuman  v.  Driefurst,  9  Colo.  228;    see  Goodenow  v.  Ewer, 

16  Cal.  461;  McDaniel  v.  Moore,  (Ida.)  112  Pac.  317; 
Welland  v.  Williams,  29  Nev.  230. 

31.  Neuman  v.  Driefurst,  ante;  Welland  v.  Williams,  ante. 

32.  Gregory  v.  Gregory,  ante;    Feliz  v.   Feliz,  ante. 

33.  Howard  v.  Throckmorton,  59  Cal.  79. 


§  61]  MINING   LEASES.  89 

CHAPTER  X. 

MINING  LEASES  AND   LICENSES. 

§  61.  Mining  leases — in  general — covenants — provision  as  to 
stoping — royalty. 

§  62.  Licenses  in  general — intent  controls — test — when  re- 
vocable— when  irrevocable — injunction. 

§  61.  Mining  Leases — In  General.  Each  mining 
lease  has  its  own  peculiar  details.  It  is  sometimes 
coupled  with  an  option  to  purchase  the ,  property 
leased,  in  which  case  they  are  separate  and  independ- 
ent agreements.1  Time  is  always  of  the  essence  of  the 
lease.2  It  is  a  contract  of  labor  and  not  a  lease  if  it 
provides  that  the  lessor  shall  have  a  certain  part  of 
the  mineral  extracted  as  a  return  for  working  the 
property  for  a  fixed  time.3 

2.  COVENANTS.     A  covenant  to  work  the  property 
continuously  means  continuously  to  the   end  of  the 
term.4    But  a  mere  covenant  to  work  the  property  is 
not   tantamount   to   an   agreement   to   work   continu- 
ously.5 

3.  PROVISION  AS  TO  STOPING.    A  provision  that  ore 
may  be  stoped  only  from  a  certain  named  level  includes 
the  right  to  stope  ore  between  such  level  and  the  next 
level  immediately  below.6 

4.  ROYALTY.     Where  a  lease  provides  for  a  roy- 
alty there  is  an  implied  covenant  on  the  part  of  the 
lessee  for  diligent  search  and  operation  and  the  lessee 
is  bound  to  proceed  with  his  mining  operations  with 
reasonable  diligence.7     Acts  of  the  lessor  that  hinder 
and  delay  the  lessee  in  his  mining  operations  serve  to 
extend  the  time  for  the  extraction  of  mineral  beyond 
that  which  is  fixed  in  the  lease.8 

See  Oil  Land  Leases,  §  122,  post. 

1.  Settle  v.  Winters,   2   Ida.    (Hasb.)    215.      See  Mathews  Slate 

Co.  v.  New  Empire  'Slate  Co.,  122  Fed.  972;  Kift  v. 
Mason,  42  Mont.  232;  Snider  v.  Yarborough,  (Mont.) 
115  Pac.  411. 

2.  Montrozona    Co.    v.    Thatcher,    19    Colo.    A.    371;    Settle    v. 

Winters,  ante;  Merk  v.  Bowery,  31  Mont.  298;  see  Halla 
v.  Rogers,  176  Fed.  709;  see  Westerman  v.  Dinsmore, 
(W.  Va.)  71  S.  E.  250. 


90  MINING  LEASES  AND  LICENSES.  [Ch.  10 

3.  Hudephol  v.  Liberty  Hill  Co.,  80  Cal.  553;  Vietti  v.  Nesbitt, 

22  Nev.  390. 

4.  Zelleken  v.  Lynch,   80  Kan.  746. 

5.  Caley  v.  Portland  Co.,  12  Colo.  A.  397. 

6.  Chambers  v.  Lowry,   21  Mont.  478. 

7.  Mclntosh  v.  Robb,   4  Cal.  A.  484;  see  §§122-3. 

8.  Halla  v.  Rogers,  ante. 

§  62.  Licenses — In  General.  A  license,  as  it  affects 
real  property,  is  a  privilege  or  permit,  oral  or  written, 
with  or  without  consideration,1  to  do  a  particular  act 
or  series  of  acts,  upon  the  estate  of  another  without 
possessing  any  estate  therein,2  and  which  otherwise 
would  be  unlawful.3 

2.  INTENT  CONTROLS.     It  is  the  intention  of  the 
parties,  as  expressed  in  the  instrument,  and  not  its 
form,  that  determines  whether  it  is  a  license  or  a  lease. 
A  quitclaim  deed  may,  in  effect,  be  a  license ;  4  or  a 
grant,  bargain  and  sale  deed  may  contain  covenants 
to  that  effect.4a 

2a.  TEST.  If  the  contract  gives  exclusive  posses- 
sion it  is  a  lease,  if  it  merely  confers  the  privilege  of 
occupation,  under  the  owner,  it  is  a  license. 5a 

3.  WHEN  REVOCABLE.    A  mere  license  is  revocable 
at  will  and  is  unassignable,  although  based  upon  a 
consideration.5  ' 

4.  WHEN  IRREVOCABLE.    When  coupled  with  an  in- 
terest a  license  is  irrevocable  and  assignable.6 

5.  INJUNCTION.     Where  the  license  has  been  re- 
voked, the  licensee  refuses  to  surrender  possession,  is 
insolvent,  and  is  committing  waste  and  destroying  the 
substance  of  the  licensor's  estate  the  latter  is  entitled 
to  an  injunction.7 

1.  Stoner  v.   Zucker,   148   Cal.   516;    Wessels  v.   Colebank,   174 

111.  618. 

2.  Wynn  v.  Garland,  19  Ark.   23;  Emerson  v.  Bergin,   76  Cal. 

197;    see  Wheeler  v.  West,  71  Cal.  126. 

3.  Grubb    v.    Vayard,    11    Fed.    Cas.    5849;    Clark   v.    Wall,    32 

Mont.  219. 

4.  Baker    v.    Clark,    128    Cal.    181;    see,    also,    Coolbaugh    v. 

Lehigh  &  Wilkes-Barre  Co.,  213  Pa.  St.  28. 
4a.  Shaw  v.  Caldwell,   (Cal.  A.)   115  Pac.  941. 


§  625  LICENSES.  91 

5.  East  Jersey  Co.  v.  Wright,   32  N.  J.   Eq.   248;    Manning  v. 

Fraser,   96   111.   279;    Johnson  v.   Skillman,   29   Minn.   95; 
Huff  v.  McCauley,  53  Pa.  St.  206;    see  Stoner  v.  Zucker, 
ante;    Stacy  v.  Glen  Ellyn  Co.,  223  111.  546;    Hosford  v. 
Metcalf,  113  Iowa  240. 
5a.  Shaw  v.  Caldwell,  ante. 

6.  Grubb  v.   Bayard,   ante;   Cary   Co.   v.   McCarty,   10  Colo.   A. 

200;    Clark  v.  Wall,  ante;    Hall  v.  Abraham,  44  Or.  477. 

7.  Clark  v.  Wall,  ante;  see  §  85. 

CHAPTER  XI. 

OPTIONS — DEEDS — EXAMINATION    OF    TITLE. 

§  66.  Options — distinction  between  option  and  contract — con- 
sideration— sufficient  consideration — duty  of  owner — 
damages — default. 

§  67.  Deeds — what  passes  by  deed — unnecessary  recital — cre- 
ation of  independent  estates — effect  of  quitclaim  deed 
— title  of  corporation — title  of  association — attack  by 
grantor — agreement  for  deed — description — statute  of 
limitations — taxation. 

§  68.  Examination  of  title — unappropriated  land — character 
of  location — form  of  location — cross  vein — rknown  vein — 
discovery — boundaries— annual  expenditure — receiver's 
receipt — conclusiveness  of  patent — inconclusiveness  of 
patent. 

§  66.  Options.  An  option  is  a  privilege  to  pur- 
chase a  certain  property,  at  an  agreed  price,  within 
a  certain  time.1  It  may  be  a  license  or  a  covenant 
running  with  the  land.2  It  may  be  coupled  with  a 
lease.3  Time  is  of  the  essence  of  the  contract4 
whether  so  therein  expressly  stated  or  not.5 

2.  DISTINCTION  BETWEEN  OPTION  AND   CONTRACT. 
The  distinction  between  a  contract  to  purchase  or  sell 
real  estate  and  an  option  to  purchase  is  that  the  con- 
tract to  purchase  or  sell  creates  a  mutual  obligation  on 
the  one  party  to  sell  and  on  the  other  to  purchase 
while  an  option  merely  gives  the  right  to  purchase 
within  a  limited  time  without  imposing  any  obligation 
to  purchase.    That  is,  an  option  is  a  right  acquired  by 
contract  to  accept  or  reject  a  present  offer  within  a 
limited  or  reasonable  time  in  the  future.6 

3.  CONSIDERATION.    Unless  based  upon  a  sufficient 
consideration  an  option  is  merely  a  continuing  offer  of 
sale  which  may  be  withdrawn  at  any  time  before  ac- 
ceptance.7 


92          OPTIONS,  DEEDS,  EXAMINATION  OF  TITLE.      [Ch.  11 

4.  SUFFICIENT  CONSIDERATION.    A  consideration  of 
one  dollar,  in  the  absence  of  fraud  or  bad  faith  s  or 
the  making  of  expenditures  upon  the  property ,°  as, 
for  instance,  the  performance  of  the  annual  assessment 
work  thereon  is  a  sufficient  consideration.10 

5.  DUTY  OF  OWNER.    It  is  essential  that  the  owner 
of  the  property  shall  ascertain,  in  due  time,  whether 
the  option  holder  has  performed  the  annual  assess- 
ment work  upon  an  un  patented  claim  should  he  have 
agreed  to  do  so,  and  if  not  so  done  by  the  latter  to 
himself  cause  the  same  to  be  done  in  time  sufficient  to 
save  the  claim  from  forfeiture.11 

6.  DAMAGES.    Where  the  option  holder  defaults  in 
such  particular  the  amount  of  damages  is  the  amount 
of  the  annual  expenditure  and  not  the  value  of  the 
claim  that  may  be  forfeited.12 

7.  DEFAULT.     If  it  is  provided  that  in  default  of 
any  of  the  payments  the  property  shall  revert  back  to 
the  grantor  of  the  option  it  is  not  necessary  in  case 
of  such  default  to  rescind  the  contract  nor  offer  to 
return  the  payments  made,  nor  wait  until  final  pay- 
ment was  due  and  in  default  before  bringing  suit  in 
ejectment.13 

1.  Richardson  v.  Hardwick,  106  U.  S.  252;  Marthinson  v. 
King,  150  Fed.  48;  Ide  v.  Leiser,  10  Mont.  5;  Snider  v. 
Yarborough,  (Mont.)  115  Pac.  411;  Hanley  v.  Watter- 
son,  38  W.  Va.  214.  See,  generally,  Pollard  v.  Sayre, 
45  Colo.  195;  Botsford  v.  Van  Riper,  (Nev.)  110  Pac. 
705;  Anderson  v.  Phegley,  (Or.)  110  Pac.  975. 

It  is  provided  in  California  that: — 

§  1577.  Whenever,  in  any  estate  now  being  adminis- 
tered, or  that  may  hereafter  be  administered,  it  shall 
appear  to  the  superior  court,  or  a  judge  thereof,  to  be 
for  the  advantage  of  the  estate  to  raise  money  upon  a 
note  or  notes  to  be  secured  by  a  mortgage  of  the  real 
property  of  any  decedent,  or  of  a  minor,  or  .an  in- 
competent person,  or  any  part  thereof,  or  to  make  a 
lease  of  said  realty,  or  any  part  thereof,  or  to  agree 
to  sell  a  claim,  or  mining  claims,  or  real  property 
worked  as  a  mine,  the  court  or  judge,  as  often  as  occa- 
sion therefor  shall  arise  in  the  administration  of  any 
estate,  may  on  a  petition,  notice,  and  hearing  as  pro- 
vided in  this  article,  authorize,  empower  and  direct  the 
executor  or  administrator,  or  guardian  of  such  minor 
or  incompetent  person,  to  mortgage  such  real  estate, 


§66]  OPTIONS.  93 

or  any  part  thereof,  and  to  execute  a  note  or  notes  to 
be  secured  by  such  mortgage,  or  to  lease  such  real 
estate,  or  any  part  thereof,  or  to  enter  into  an  agree- 
ment to  sell  such  real  estate,  or  any  part  thereof. 

§  1580.  To  obtain  an  order  to  enter  into  an  agree- 
ment for  the  sale  of  a  mining  claim,  or  claims,  or  real 
property,  worked  as  a  mine,  the  proceedings  to  be 
taken  and  the  effect  thereof  shall  be  as  follows: 

First.  The  executor,  administrator,  guardian  of  a 
minor,  or  of  an  incompetent  person,  or  any  person  in- 
terested in  the  estate  of  such  decedents,  minors,  or  in- 
competent persons,  may  file  a  verified  petition  show- 
ing: 

1.  The    advantage    or    advantages    that    may    accrue 
to  the  estate  from  entering  into,  such  an  agreement. 

2.  A  general  description  of  the  property  affected  by 
said  agreement. 

3.  The    terms    and    general    conditions    of    the    pro- 
posed agreement. 

4.  The   names   of  the   legatees   and   devisees,   if  any, 
and  of  the  heirs  of  the  deceased,  or  of  the  minor,  or  of 
the   incompetent  person,   so   far  as  known   to   the  peti- 
tioner. 

Second.  Upon  filing  such  petition  an  order  shall  be 
made  by  the  court  or  judge  requiring  all  persons  inter- 
ested in  the  estate  to  appear  before  the  court  or  judge, 
at  a  time  and  place  specified,  not  less  than  two  or 
more  than  four  weeks  thereafter,  then  and  there  to 
show  cause  why  an  agreement  for  the  sale  of  the 
realty  should  not  be  made,  and  referring  to  the  peti- 
tion on  file  for  further  particulars. 

Third.  The  order  to  show  cause  must  be  personally 
served  on  the  persons  interested  in  the  estate  at  least 
ten  days  before  the  time  appointed  for  hearing  the  pe- 
tition, or  it  may  be.  published  for  four  successive 
weeks  in  a  newspaper  of  general  circulation  in  the 
county  if  there  be  one,  and  if  there  is  none  then  in 
some  newspaper  of  general  circulation  in  the  county. 

Fourth.  At  the  time  and  place  appointed  to  show 
cause,  or  at  such  other  time  and  place  to  which  the 
hearing  may  be  postponed  the  power  to  make  all  need- 
ful postponements  being  hereby  vested  in  the  court  or 
jury,  the  court  or  judge  having  first  received  satisfac- 
tory proof  of  personal  service  or  publication  of  the 
order  to  show  cause,  must  proceed  to  hear  the  peti- 
tion, and  any  objections  that  may  have  been  filed  or 
presented  thereto.  If,  after  a  full  hearing,  the  court 
or  judge  is  satisfied  that  it  will  be  for  the  advantage 
of  the  estate  to  enter  into  the  proposed  agreement  fc-r 
the  sale  of  the  mines  or  real  estate,  an  order  must  be 
made  authorizing,  empowering  and  directing  the  ex- 
ecutor, administrator  or  the  guardian  to  make  such 
agreement.  The  order  may  prescribe  the  terms  and 
conditions  of  such  agreement. 

Fifth.  After  the  making  of  the  order  to  enter  into 
said  agreement,  the  executor,  administrator  or  guard- 
ian of  a  minor  or  of  an  incompetent  person  shall  exe- 
cute, acknowledge  and  deliver  an  agreement  contain- 
ing the  conditions  specified  in  the  order,  seating  forth 
in  the  agreement  that  it  is  made  by  authority  of  the 


94         OPTIONS,  DEEDS,  EXAMINATION  OF  TITLE.     [Ch.  11 

order,  and  giving  the  date  of  such  order.  A  certified 
copy  of  the  order  shall  be  recorded  in  the  office  of  the 
county  recorder  of  every  county  in  which  the  land 
affected  by  the  agreement  or  any  portion  thereof  is 
situated.  C.  C.  P.,  §§  1577-1580. 

The  provisions  of  the -probate  law  of  California  in 
relation  to  the  summary  sale  of  mines  and  mining 
interests  are  as  follows: — 

§  1529.  When  it  appears  from  the  inventory  of  the 
estate  of  any  decedent  that  his  estate  consists  in 
whole  or  in  part  of  mines,  or  interests  in  mines,  such 
mines  or  interests  may  be  sold  under  the  order  of  the 
court  having  jurisdiction  of  the  estate,  as  hereinafter 
provided. 

§  1530.  The  executor  or  the  administrator,  or  any 
heir  at  law,  or  creditor  of  the  estate,  or  any  partner 
or  member  of  any  mining  company,  in  which  interests 
or  shares  are  held  or  owned  by  the  estate,  may  file  in 
the  court  a  petition  in  writing,  setting  forth  the  gen- 
eral facts  of  the  estate  being  then  in  due  course  of 
administration,  and  particularly  describing  the  mine, 
interest,  or  shares  which  it  is  desired  to  sell,  and  par- 
ticularly the  condition  and  situation  of  the  mines  or 
mining  interests,  or  of  the  mining  company  in  which 
such  interests  or  shares  are  held,  and  the  grounds 
upon  which  the  sale  is  asked  to  be  made. 

§  1531.  Upon  the  presentation  of  such  petition,  the 
court,  or  a  judge  thereof,  must  make  an  order  direct? 
ing  all  persons  interested  to  appear  before  such  court, 
at  a  time  and  place  specified,  not  less  than  four  or 
more  than  ten  weeks  from  the  time  of  making  such 
order,  to  show  cause  why  an  order  should  not  be 
granted  to  the  executor  or  administrator  to  sell  such 
mine,  mining  interests,  shares,  or  stocks,  as  are  set 
forth  in  the  petition  and  belonging  to  the  estate.  A 
copy  of  the  order  to  show  cause  must  be  personally 
served  on  all  persons  interested  in  the  estate,  at  least 
ten  days  before  the  time  appointed  for  hearing  the 
petition,  or  published  at  least  four  successive  weeks 
in  such  newspaper  as  such  court  or  judge  shall  specify. 
If  all  persons  interested  in  the  estate  signify  in  writ- 
ing their  assent  to  such  sale,  the  notice  may  be  dis- 
pensed with. 

§  1532.  If,  upon  hearing  the  petition,  it  appears  to 
the  satisfaction  of  the  court  that  it  is  to  the  interest 
of  the  estate  that  such  mining  property  or  interests 
of  the  estate  should  be  sold,  or  that  an  immediate  sale 
is  necessary  in  order  to  secure  the  just  rights  or 
interests  of  the  mining  partners,  or  tenants  in  com- 
mon, such  court  must  make  an  order  authorizing  the 
executor  or  administrator  to  sell  such  mining  inter- 
ests, mines,  or  shares,  as  hereinafter  provided. 

§  1533.  After  the  order  of  sale  is  made,  all  further 
proceedings  for  the  sale  of  such  mining  property,  and 
for  the  notice,  report,  and  confirmation  thereof,  must 
be  in  conformity  with  the  provisions  of  article  four 
of  this  chapter.  C.  C.  P.,  §§  1529-1533. 

2.  Smith  v.  Jones,  21  Utah,  270. 

3.  Mathews  Slate  Co.  v.  New  Empire  Slate  Co.,  122  Fed.  972; 

Settle  v.  Winters,  2  Ida.  (Hasb.)  215;  Snider  v.  Yar- 
borough,  ante. 


§67]  DEEDS.  95 

4.  Gaines  v.  Chew,  167  Fed.  630;  Harper  v.  Independence  Co., 

(Ariz.)  108  Pac.  701;  Settle  v.  Winters,  ante;  Merk  v. 
Bowery  Co.,  31  Mont.  298;  Snider  v.  Yarborough,  ante. 

5.  Waterman  v.  Banks,  144  U.  S.  394;  Clark  v.  American  Co., 

28   Mont.    468. 

6.  Brickell  v.  Atlas  Co.,  10  Cal.  A.  17;  Clark  v.  American  Co., 

ante.  What  is  termed  an  option,  although  unilateral 
in  form,  may,  in  effect,  be  an  agreement  to  sell;  and 
when  possession  is  taken  and  payments  made  there- 
under, such  acts  are  an  acceptance  of  its  terms.  The 
"option  holder"  is  then  bound  as  a  purchaser,  and 
in  case  of  default,  the  vendor  has  the  right  to  re-enter 
and  recover  unpaid  installments.  Reed  v.  Jlickey,  13 
Cal.  A.  136. 

7.  Milwaukee  Co.  v.   Shea,   123   Fed.   9;   Brown  v.   S.   F.   Sav. 

Union,  134  Cal.  448;  Frank  v.  Stratford-Handcock,  13 
Wyo.  37;  see  Snow  v.  Nelson,  113  Fed.  353;  Gordan  v. 
Darnell,  5  Colo.  302;  Penn.  Co.  v.  Smith,  207  Pa.  St.  210. 
An  offer  which  in  its  terms  limits  the  term  of  accept- 
ance is  withdrawn  by  the  expiration  of  the  time. 
Waterman  v.  Banks,  ante.  After  acceptance  of  the 
terms  by  the  holder  of  the  option  the  parties  are  mu- 
tually bound  and  either  one  may  compel  specific  per- 
formance by  the  other.  Hoogendorn  v.  Daniel,  178  Fed. 
765.  See,  also,  Marthinson  v.  King,  ante.  That  an 
accounting  may  be  had,  see  S.  P.  Mines  v.  Court,  (Nev.) 
110  Pac.  503. 

8.  Pittsburg  v.  Bailey,   76  Kan.   42. 

9.  Ford  v.  Milk  Ass'n.,  155  111.  166. 

10.  Ferguson  v.  McGuire,  17  Ida.  141. 

11.  Stamey  v.  Hemple,  173  Fed.  61. 

12.  Id. 

13.  Williams  v.  Long,  129  Cal.  229. 

§  67.  Deeds.  A  mining  claim  being  real  estate  it 
can  be  transferred  only  by  operation  of  law1  or  by  an 
instrument  in  writing,2  but  a  discoverer  of  mineral 
may  transfer  his  right  of  location  by  parol.3 

2.  WHAT  PASSES  BY  DEED.    It  is  sufficient  if  it  be 
clear  from  the  language  used  that  the  grantor  in- 
tended to  pass  the  title  to  the  property  and  whatever 
is  incident  and  appurtenant  thereto.4 

3.  UNNECESSARY  KECITAL,.     It  is  not  necessary  to 
insert  in  a  deed  a  clause  conveying  the  "dips,  spurs 
and  angles"  of  the  lode  or  vein  conveyed.5 

4.  CREATION  OF  INDEPENDENT  ESTATES.    Independ- 
ent estates  may  be  carved  out  of  the  same  land,  as, 
where  the  owner  of  the  surface  grants  only  the  right 
to  the  underlying  mineral.6 


96          OPTIONS,  DEEDS,  EXAMINATION  OF  TITLE.      [Ch.  11 

The  term  "surface"  has  been  defined  as  that  part 
of  the  land  which  is  capable  of  being  used  for  agri- 
cultural purposes.7 

A  deed  for  a  specific  portion  of  an  unpatented 
claim  renders  each  an  independent  claim  subject  to 
all  the  incidents  of  separate  ownership  as  to  dis- 
covery,8 (if  not  previously  made),  and  as  to  annual 
expenditure. 

5.  EFFECT  OF  QUITCLAIM  DEED.    Ordinarily  a  quit- 
claim deed  conveys  only    the    present    title    of    the 
grantor,  but  if  executed  during  the  pendency  of  pat- 
ent proceedings  in  behalf  of  the  grantor  the  title  ac- 
quired by  the  issuance  of  patent  inures  to  the  benefit 
of  the  grantee  named  in  the  quitclaim  deed.9 

6.  TITLE  OF  CORPORATION.    Title  to  mining  ground 
will  not  pass  to  or  from  a  corporation  if  the  assent 
of  the  stockholders  is  not  given,10  or,  if  a  foreign  cor- 
poration, if  it  has  not  filed  its  articles  of  incorporation  - 
in  the  foreign  state  as  required  by  local  statute. 10a 

7.  TITLE  OF  ASSOCIATION.     A  deed  to  an  unincor- 
porated association  of  persons  as  to  the  firm  of  "A.  B. 
&  Co."  passes  the  title  to  "B."  alone.11    A  deed  to  an 
unincorporated  ^mining  company  is  not  void  for  want 
of  a  grantee  therein  capable  of  taking  under  it.12 

8.  ATTACK  BY  GRANTOR.     A  grantor  cannot  attack 
the  validity  of  the  location  conveyed  13  nor  re-locate 
the  claim  upon  the  failure  of  the  grantee  to  make  the 
necessary  annual  expenditure  upon  the  claim.14 

9.  AGREEMENT  FOR  DEED.     A  party  may  agree  to 
sell  one  or  more  mining  claims  to  which  he  may  not 
then  have  title,  and  to  convey  a  good  and  sufficient 
title  upon  the  performance  of  all  the  conditions  as- 
sumed by  the  purchaser.15 

10.  DESCRIPTION.    It  is  sufficient  that  the  property 
can  be  identified.16    Hence  a  mining  claim  which  has  a 
known  descriptive  name  may  be  sufficiently  described 


§  67]  DEEDS.  97 

by  such  name,  coupled,  when  possible,  with  a  proper 
reference  to  the  record  or  the  patent.17 

A  conveyance  of  ground  "lying  east  of  the  grantor's 
patented  mining  ground"  carries  no  right  to  the  vein 
or  lode  which  may  dip  under  the  ground  conveyed,  as 
it  does  not  purport  to  grant  any  part  of  the  patented 
ground.18 

11.  STATUTE  OF  LIMITATIONS.    Where  independent 
estates  exist  in  the  same  land,  possession  of  the  surface 
does  not  carry  with  it  possession  of  the  minerals  under 
the  statute  of  limitations.19 

12.  TAXATION.     Independent  estates  in   the   same 
land  are  each  subject  to  separate  taxation.20 

1.  Lohman   v.   Helmer,    104   Fed.    178;    O'Connell   v.    Pinnacle 

Co.,   131   Fed.   106;  Moore  v.   Hammerstag,   109   Cal.   122. 

2.  Id.     An  oral  agreement  cannot  act  as  a  transfer.     Garthe 

v.  Hart,  73  Cal.  541;  nor  create  a  trust  in  a  mining 
claim.  Moore  v.  Hammerstag,  ante. 

3.  Doe  v.  Waterloo  Co.,  70  Fed.  455;  Miller  v.  Chrisman,  140 

Cal.  440.  See  H.  H.  Yard,  38  L.  D.  59;  see  also  §120- 
19a,  post. 

4.  Meyers  v.  Farquharson,  46  Cal.  190;    Stinchfield  v.  Gillis, 

96  Cal.  33;  s.  c.  107  Cal.  8;  Riley  v.  N.  Star  Co.,  152  Cal. 
549;  see  Noland  v.  Coon,  1  Alaska,  36. 

5.  Montana  Co.  v.  St.  Louis  Co.,  204  U.  S.  204;    Mont.  Co.  v. 

Mont.  &  Boston  Co.,  27  Mont.   288. 

6.  Id.;   Catron  v.   So.   Butte   Co.,   181   Fed.   941;   Stinchfield   v. 

Gillis,  ante;  Williams  v.  S'o.  Penn.  Co.,  52  W.  Va.  181; 
Smith  v.  Jones,  21  Utah,  270;  Yellow  Poplar  Co.  v. 
Thompson,  108  Va.  612.  See  Woodside  v.  Ciceroni,  93 
Fed.  1.  When  the  surface  of  land  is  owned  by  one, 
and  the  mineral  beneath,  with  the  right  to  extract  the 
same,  is  owned  by  another,  it  is  immaterial  whether 
the  two  interests  have  been  created  by  a  conveyance 
of  the  surface,  with  a  reservation  of  the  mineral,  or 
by  a  grant  of  the  mineral,  with  a  reservation  of  the 
surface.  In  either  case  the  obligation  to  protect  the 
surface  is  the  same.  And  it  is  well  settled  that  the 
grant  of  the  surface,  with  a  reservation  of  the  min- 
erals, and  a  right  to  extract  the  same,  does  not  permit 
the  destruction  of  the  surface,  unless  the  right  to  do  so 
has  been  expressed  in  terms  so  plain  as  to  admit  of  no 
doubt.  Catron  v.  So.  Butte  Co.,  ante.  For  rights  of 
owner  of  surface  as  against  owner  of  minerals  there- 
under, see  West  Pratt  Co.  v.  Dorman,  and  mono- 
graphic note,  135  Am.  St.  Rep.  127.  As  to  statutory 
provision  for  the  separation  of  mineral  and  non- 
mineral  rights  in  coal  lands,  see  36  Stats.  583;  also 
§  108,  post. 

7.  Murray  v.  Allred.  100  Tenn.  100. 


98         OPTIONS,  DEEDS,  EXAMINATION  OF  TITLE.     [Ch.  11 

8.  Merced  Oil  Co.  v.  Patterson,   153   Cal.   624;  Zeckendorf  v. 

Hutchinson,  1  N.  M.  476;  see  Pittsburg-Nevada  Co.,  39 
L.  D.  523;  see  §  158,  post. 

9.  People   v.    Blake,    84    Cal.    611.      See   Witcher   v.    Conklin, 

84  Cal.  499;  Wholey  v.  Cavanaugh,  88  Cal.  132;  Liddia 
Claim,  33  L.  D.  127.  A  transfer  of  title  by  an  applicant 
for  a  patent  during  the  pendency  of  the  application 
has  the  effect  of  making  him  a  trustee  and  as  such  he 
holds  the  title  only  for  the  purposes  of  such  applica- 
tion and  when  patent  is  issued  the  title  immediately 
reverts  to  his  grantee.  Slothower  v.  Hunter,  15  Wyo. 
189.  A  deed  in  escrow  prior  to  entry  passes  no  title. 
Brady's  Mortgagee  v.  Harris,  29  L.  D.  89. 

10.  McShane  v.  Carter,  80  Cal.  310;  Kennedy  v.  Pekin  Co.,   81 

Cal.  356;  Royal  Con.  Co.  v.  Royal  Con.  Mines,   157  Cal. 

737.     See  Granite  Co.  v.  Maginness,  -118  Cal.  131.     This 

rule  applies  to  a  mortgage.     Williams  v.  Gaylord,   186 

'  .      U.    S.    157;    Bennett   v.    Red   Cloud   Co.,    14    Cal.   A.    728; 

see  §  223,   post. 
lOa.  Cal.  C.  C.  §  410. 

11.  Winters  v.  Stock,  29  Cal.  408. 

12.  Cochran  v.  O'Keefe,  34  Cal.  554. 

13.  Blake  v.   Thorne,    2   Ariz.    347;   Drake   v.    Gilpin,    16   Colo. 

231;  McCarthy  v.  Speed,  11  S.  Dak.  362.  See  Philes  v. 
Hickies,  2  Ariz.  407;  Shreve  v.  Copper  Bell  Co.,  11 
Mont.  309. 

14.  Drake  v.  Gilpin,  ante. 

15.  Donovan  v.  Hanauer,  32  Utah,  317. 

16.  Carter   v.    Bacigalupi,    83    Cal.    187;    see   Mont.    Co.   v.    St. 

Louis  Co.,  183  Fed.  51. 

17.  Glacier  v.  Willis,   127  U.  S.  471;  Harris  v.  Equator  Co.,   3 

Fed.  863;  Reed  v.  Munn,  148  Fed.  737;  Carter  v.  Baci- 
galupi, ante;  Murray  v.  Tulare  Co.,  120  Cal.  311;  Berg- 
quist  v.  W.  Va.  Co.,  (Wyo.)  106  Pac.  673.  That  a  claim 
is  known  by  several  names  and  only  one  of  them  is 
given  in  the  deed  is  immaterial.  Lebanon  Co.  v.  Con.. 
Republican  Co.,  6  Colo.  371;  Collins  v.  McKay,  36  Mont. 
123;  Phillpotts  v.  Blasdell,  8  Nev.  61;  Weill  v.  Lucerne 
Co.,  11  Nev.,  200.  In  a  complaint  in  ejectment  a  mining 
claim  is  sufficiently  described  by  its  descriptive  name. 
Veronda  v.  Dowdy,  (Ariz.)  108  Pac.  482. 

18.  Cent.  Eureka  Co.  v.  East  Cent.  Eureka  Co.,   146  Cal.   147. 

The  receiver's  receipt  issued  in  patent  proceedings 
should  describe  the  claim  by  the  name  borne  in  the 
location  notice  and  the  official  survey.  Sold  Again 
Fraction,  20  L.  D.  58. 

19.  Tyee  Con.  Co.  v.  Langstedt,  136  Fed.  124;    Catlin  Coal  Co. 

v.  Lloyd,  176  111.  275. 

20.  Con.   Coal   Co.   v.   Baker,    135   111.    545.      See   Hutchinson   v. 

Kline,  199  Pa.  St.  564.  Each  of  separate  layers  or 
strata  becomes  a  subject  for  taxation,  of  incumbrance, 
levy  and  sale,  precisely  like  the  surface.  Murray  v. 
Allred,  100  Tenn.  100.  See,  also,  McGraw  v.  Lakin. 
67  W.  Va.  385;  see  §122-7. 

§  68.  Examination  of  Title.  An  abstract  of  title 
of  an  unpatented  mining  claim  is  hardly  more  than  a 
chain  of  title.1 


§  68]  EXAMINATION   OF   TITLE.  99 

2.  UNAPPROPRIATED  LAND.     Such  an  abstract  does 
not  show  that  the  land  embraced  in  the  location  was 
subject  to  appropriation  2  or  whether  or  not  there  is 
an  adverse  claimant  or  a  party  in  adverse  possession.3 

3.  CHARACTER  OF  LOCATION.    It  does  not  show  that 
the  mineral  deposit    (if  any)    therein  is  of  such  a 
nature  as  to  warrant  the  character  of  location  made.4 

4.  FORM  OF  LOCATION.    It  does  not  show  that  the 
location  is  laid  along  instead  of  across  the  vein  or  lode5 
or  that  it  is  upon  the  strike  and  not  the  dip  thereof.6 

5.  CROSS  VEIN.     It  does  not  show  that,  if,  a  lode 
claim,  there  is  not  a  cross    or   united   vein    or    lode 
therein  having  priority  of  title.7 

6.  KNOWN  VEIN.    It  may  not  show  that,  if  a  placer 
claim,  there  is  not  a  known  vein  or  lode  therein.8 

7.  DISCOVERY.     It  does  not  show  that  "discovery'1 
has  been  made.9 

8.  BOUNDARIES.     It  can  not  show  that  the  claim 
is  so  demarked  that  its  boundaries  can    be    readily 
traced.10 

9.  ANNUAL  EXPENDITURE.    It  does  not  conclusively 
show  that  the  proper  annual  expenditure  has  been 
made.11 

10.  RECEIVER'S  RECEIPT.     The  receiver's  receipt  is 
not  conclusive  because  it  is  subject  to  cancellation.12 

11.  CONCLUSIVENESS   OF   PATENT.     The   patent   is 
conclusive  evidence,  if  a  lode  claim,  that  the  end  lines 
are  parallel;13  and  that  no  adverse  claims  exist.14 

12.  INCONCLUSIVENESS  OF  PATENT.    Unless  because 
of  lapse  of  time15  the  patent  is  not  conclusive  of  suf- 
ficient discovery,16  that  the  location  is  valid,17  that  the 
location  accords  with  the  mode  of  occurrence  of  the 
mineral  therein,18  that  the  title  is  vested  in  the  pat- 
entee,19 that  the  claim  is  free  from  subsisting  lien,20 
that  the  claim  on  the  ground  is  correctly  described,21 
that  a  tunnel  claimant  may  not  have  a  better  right  to 
blind  veins  22  or  a  townsite,23  or  a  placer  24  patentee 


100       OPTIONS,  DEEDS,  EXAMINATION  OF  TITLE.     [Ch.  11 

to  a  known  vein  therein,  or  that  its  issuance  was  within 
the  jurisdiction  of  the  land  department.25 

1;  Patterson  v.  Hitchcock,  3  Colo.  533. 

2.  U.  S.  v.  Rossi,  133  Fed.  380. 

3.  Reedy  v.  Wesson,   1  Alaska,   570;  Wetzstein  v.  Largey,   27 

Mont.   212. 

4.  Henderson  v.  Fulton,  35  L.  D.  652;  E.  M.  Palmer,  38  L.  D. 

294. 

5.  Flagstaff  Co.  v.  Tarbet,  98  U.  S.  463. 

6.  Larkin   v.    Upton,    144   U.   S.    19;    Bunker   Hill   Co.   v.    Sho- 

shone  Co.,  33  L.  D.  142;  see  Van  Zandt  v.  Argentine 
Co.,  8  Fed.  725. 

7.  Rev.    Stats.,    §2336;     Patterson     v.    Hitchcock,    ante;     Last 

Chance  Co.  v.  Tyler  Co.,  61  Fed.  557. 

8.  Rev.  Stats.  §  2333. 
9. 'Rev.  Stats.  §  2320. 

10.  Rev.  Stats.  §  2324. 

11.  Id.     See  Last  Chance  Co.  v.  Tyler,  ante. 

12.  Deffebach  v.  Hawke,  115  U.  S.  392;  see  §§214-15,  post. 

13.  Waterloo  Co.  v.  Doe,  82  Fed.  45;  affirming  Doe  v.  Water- 

loo Co.,  54  Fed.  935. 

14.  Rev.   Stats.,  §  2325. 

15.  26  Stats.   1099;  Patterson  v.  Hewitt,  195  U.  S.  309;  U.  S.  v. 

Chandler-Dunbar  Co.,  209  U.  S.  447;  see  Holt  v.  Murphy, 
207  U.  S.  407. 

16.  U.   S.  v.   Iron   Co.,   128   U.   S.   673;   see   Creede  Co.   v.   Uinta 

Co.,  196  U.  S.  337;  see  Calhoun  Co.  v.  Ajax  Co.,  182  U.  S4 
499. 

17.  Hickey  v.  Anaconda  Co.,  33  Mont.   46. 

18.  U.  S.  v.  Iron  Co.,   ante. 

19.  Burfenning    v.    Chicago    Co.,    163    U.    S.    321;    Stevens    v. 

Grand  Cent.  Co.,  133  Fed.  28;  Cascaden  v.  Dunbar,  157 
Fed.  62;  Van  Sice  v.  Ibex  Co.,  173  Fed.  895;  U.  S.  v. 
Smith,  181  Fed.  545;  Mery  v.  Brodt,  121  Cal.  332;  Sues- 
senbach  v.  Bank.  5  Dak.  477;  see  Patterson  v.  Hewitt, 
ante;  Wetzstein  v.  Largey,  ante.  For  collection  of 
cases,  see  Tonopah  Co.  v.  Fellanbaum,  (Nev.)  107  Pac. 
882. 

20.  Rev.    Stats.,   §§2332-2340-2477;   Butte   H.    Co.   v.   Frank,    25 

Mont.   344. 

21.  Rev.  Stats.,  §  2327. 

22.  Creede  Co.  v.  Uinta  Co.,  ante. 

23.  Bonner  v.  Meikle,  82  Fed.  697;  Lalande  v.  Saltese,  32  L.  D. 

211;  Callahan  v.  James,  141  Cal.  291;  see  Dower  v. 
Richards,  151  U.  S.  658;  Lamed  v.  Jenkins,  113  Fed. 
634;  Brophy  v.  O'Hare,  34  L.  D.  596;  Board  v.  Mans- 
field, 17  S.  Dak.  72. 

24.  Rev.    Stats.,    §2333;    see    Reynolds    v.    Iron    Co.,    116    U.    S. 

687;  Clipper  Co.  v.  Eli  Co.,  194  U.  S.  220;  Cranes  Gulch 
Co.  v.  Scherrer,  134  Cal.  350;  Mt.  Rosa  Co.  v.  Palmer,  26 
Colo.  56. 

25.  Burfenning  v.  Chicago  Co.,  ante;  Francoeur  v.  Newhouse, 

40  Fed.   618;  Rose  v.  Richmond  Co.,   17  Nev.  25. 


§  Tito]  . 

[     T 
CHAPTER  XIT.  ,,M  X| 

POSSESSION — ABANDONMENT — FORFEITURE. 

§  71.  Possession — actual  possession — actual  possession  not  re- 
quired— actual  possession  without  boundaries — con- 
structive possession — boundaries  without  discovery 
— presumption  as  to  ownership — evidence  of  ownership 
— adverse  possession — general  principle — continuity  of 
possession — insufficient  adverse  possession — -effect  of 
patent. 

§  72.  Abandonment — intent  controls — how  effected — co-tenant 
— not  abandonment— deed — proof— test — pleading. 

§  73.  Forfeiture — proof — burden  of  proof — reasonable  doubt- 
pleading — absence  of  right. 

?*%9il 
§71.     Possession.     A  valid  location  of  a  mining 

claim  carries  with*  it  the  right  of  possession.1  Location 
does  not  follow  from  possession,2'  but  location  will  be 
presumed  from  possession  maintained  for  a  sufficient 
time  under  the  statute  of  limitations.3 

2.  ACTUAL  POSSESSION.    Actual  possession  means  a 
subjection  to  the  will  and  dominion  of  the  claimant.4 

3.  ACTUAL  POSSESSION  NOT  REQUIRED.    The  "actual 
possession"  which  is  applied  to  agricultural  lands  and 
which  is  understood  to  be  a  possessio  pedis  is  not  re- 
quired in  a  completely  located  mining  claim.5 

4.  ACTUAL  POSSESSION  WITHOUT  BOUNDARIES.    Ac- 
tual possession  without  boundaries  or  discovery  pro- 
tects only  that  part  of  the  location  which  is  being 
worked.6 

5.  CONSTRUCTIVE    POSSESSION.      Where    a    claim 
lacks  none  of  the  essential  elements  of  location  and 
the  requisite  expenditure  is  made  thereon  it  may  be 
held  by  constructive  possession.7 

6.  BOUNDARIES  WITHOUT  DISCOVERY.    Constructive 
possession  extends  to  the  entire  location  if  its'  bound- 
aries are  clearly  defined  although  there  may  be  an  ab- 
sence of  discovery  therein,  provided,  that  the  discov- 
ery is    being    sought    by  actual  exploitation  of  the 
ground.8 


102    POSSESSION— ABANDONMENT— FORFEITURE.    [Ch.  12 

7.  PRESUMPTION  AS  TO  OWNERSHIP.    Every  locator 
is  presumed  to  be  the  owner  of  his  claim  and  of  the 
mineral  therein  until  some  one  else  shows  a  better 
right  thereto.9 

8.  EVIDENCE  OF  OWNERSHIP.     Working  the  prop- 
erty,10 living  thereon,11  or  the  presence  of  a  watchman 
is  evidence  of  possession.12 

9.  ADVERSE    POSSESSION.      Adverse    possession    to 
ripen  into  a  title  by  prescription  must  be  in  consonance 
with  the  laws  of  the  state  within  which  the  claim  may 
lie.13 

10.  GENERAL   PRINCIPLE.     The   acts   of   dominion 
must  be  adapted  to  the  particular  land,  its  condition, 
locality  and  appropriate  use,14  for  he  who  asserts  an 
exclusive  ownership  over  land  must  perform  acts  in 
harmony  with  his  claim  of  title.15 

11.  CONTINUITY   OF   POSSESSION.    An   interval   in 
the  continuity  of  the  possession  necessary  to  constitute 
adverse  possession  will  not  %|gessarily  defeat  the  ad-* 
verse  right.16 

12.  INSUFFICIENT  ADVERSE  POSSESSION.    The  occa- 
sional use  of  mining  ground  without  the  knowledge  of 
the  owner  or  the  repudiation  of  his  rights  ;17  or  secret 
underground  working  will  not  establish  an  adverse 
right 18  nor  will  such  right  arise  from  the  possession  of 
the  dip  of  a  vein  or  lode  without  possession  of  the  top 
or  apex  thereof.19 

13.  EFFECT  OF  PATENT.    An  adverse  right  will  be 
lost  if  not  made  the  subject  of  an  adverse  claim  when 
patent  is  adversely  applied  for.20     The  adverse  right 
must  commence  anew  from  and  after  the  date  of  the 
patent.21 

1.  Wolverton  v.  Nichols,   119  U.   S.   485;   Malone  v.   Jackson, 

137  Fed.  787;  McLemore  v.  Express  Co.,  158  Cal.  559. 

2.  Belk  v.  Meagher,  104  U.  S.  279;    Malone  v.  Jackson,  ante". 

3.  Harris  v.  Equator  Co.,  8  Fed.   863;  Vogel  v.  Warsing,  146 

Fed.   949;    Buffalo   Zinc   Co.   v.   Crump,    70   Ark.   525;   see 
Rev.  Stats.,  §  2332. 


§  72]  ABANDONMENT.  103 

4.  N.  J.  Co.  v.  Gardner,  178  Fed.  772;  Coryell  v.  Cain,  16  Cal. 

567;    Attwood  v.  Fricot,  17  Cal.  37. 

5.  Attwood  v.  Fricot,  ante;  English  v.  Johnson,  17  Cal.  107. 

6.  Grossman  v.  Pendery,  8  Fed.  693;  see  Cowell  v.  Lammers, 

21  Fed.  200;  Hanson  v.  Craig",  170  Fed.  62.  In  the  case 
last  cited  the  court  says:  "Pedis  possessio"  means  the 
actual  possession,  and  pending  a  discovery  by  anybody 
the  actual  possession  of  the  prior  arrival  will  be  pro- 
tected to  the  extent  needed  to  give  him  room  for  work 
and  to  prevent  probable  breaches  of  the  peace.  But, 
while  the  pedis  possessio  is  thus  protected,  it  must 
yield  to  an  actual  location  on  a  valid  discovery  made 
by  one  who  has  located  peaceably,  and  neither  clan- 
destinely nor  with  fraudulent  purpose.  Citing,  with 
approval,  Costigan  on  Min.  Law,  p.  156. 

7.  Harris  v.  Equator  Co.,  ante;  Attwood  v.  Fricot,  ante. 

8.  Nev.  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  673;  English 

v.  Johnson,  ante;  Hess  v.  Winder,  30  Cal.  349;  Chris- 
man  v.  Miller,  140  Cal.  440.  The  attempting  locator 
has  the  right  to  continue  possession  undisturbed  by 
any  form  of  hostile  or  clandestine  entry  while  he  is 
diligently  prosecuting  his  work  to  a  discovery.  McLe- 
more  v.  Express  Co.,  ante;  but  see  Hanson  v.  Craig, 
ante. 

9.  Leadville  Co.  v.  Fitzgerald,  15  Fed.  Gas.  8158. 

10.  Koons  v.  Bryson,   69  Fed.  297;  Cosmos  Co.  v.  Gray  Eagle 

Co.,  112  Fed.  4;  Lange  v.  Robinson,  148  Fed.  799:  see 
Badger  Co.  v.  Stockton  Co.,  139  Fed.  838;  Costello  v. 
Muheim,  9  Ariz.  422. 

11.  Lange  v.  Robinson,  ante. 

12.  Justice  Co.  v.  Barclay,  82  Fed.  554. 

13.  Glacier  Co.  v.  Willis,  127  U.  S.  471;  Tyee  Con.  Co.  v.  Lang- 

stedt,  136  Fed.  124;  Standard  Co.  v.  Habishaw,  132 
Cal.  115;  see  §  84,  post. 

14.  Webber   v.    Clarke,    74    Cal.    11;    see    Scadden    Flat   Co.   v. 

Scadden,  121  Cal.  33. 

15.  Id. 

16.  Id.;    see  Stewart  v.  Rees,  25  L.  D.  447. 

17.  Id. 

18.  Badger  Co.  v.  Stockton  Co.,  ante;    see  Last  Chance  Co.  v. 

Bunker  Hill  Co.,  131  Fed.  579. 

19.  Davis  v.  Shepherd,  31  Colo.  141. 

20.  Rev.  Stats.,  §2325. 

21.  Clark  v.  Barnard,  15  Mont.  176;  So.  End.  Co.  v.  Tinney,  22 

Nev.  221;  see  Redfield  v.  Parks,  132  U.  S.  239;  Hamilton 
v.  So.  Nev.  Co.,  33  Fed.  562;  see  Tyee  Con.  Co.  v.  Lang- 
stedt,  ante. 

§  72.  Abandonment.  Abandonment  is  a  voluntary 
act  *  and  operates  instantly  2  to  extinguish  all  rights  in 
the  property  abandoned.3 

2.  INTENT  CONTROLS.  Unlike  forfeiture,  (as  that 
term  is  used  and  understood  in  the  mining  law4),  it 
does  not  depend  upon  lapse  of  time  5  nor  the  act  of 
another  for  loss  of  right  in  the  property,6  but  on  the 


104'  ^POSSESSION— ABANDONMENT— FORFEITURE.    [Ch.  12 

intention  of  its  claimant,  to  be  determined  from  all 
the  facts  and  circumstances  of  the  case.7 

3.  How  EFFECTED.     Abandonment  may  consist  of 
departure  from  the  claim  without  intention  to  repos- 
sess it  and  regardless  of  who  may  appropriate  it,8  by 
verbal  permission  to  another  to  re-locate  it  in  whole  or 
in  part,9  or  by  a  written  relinquishment  of  all  rights 
to  the  claim.10     The  abandonment  may  be  as  to  the 
whole  or  a  part  of  the  claim.11 

4.  CO-TENANT.     A  co-tenant  may  abandon  his  in- 
dividual interest  in  a  claim  without  prejudice  to  the 
rights  of  his  co-owners  therein.12 

5.  NOT  ABANDONMENT.     A  part  of  a  claim  inten- 
tionally excluded  from  an  application  for  patent  is 
not  abandoned  if  the  claimant  retains  possession  of 
such  part  and  makes  the  annual  expenditure  there- 
on;13 nor  does  error  in  excluding  a  part  of  a  claim 
from  such  an  application  operate  as  an  abandonment  - 
thereof.     It  may  be  included  in  an  amendment  or 
re-survey.14 

6.  DEED.    A  deed  executed  after  abandonment  con- 
veys no  interest  in  the  claim  abandoned.15 

7.  PROOF.     In  order  to    sustain  an    allegation  of 
abandonment  it 'must  appear  that  there  was  a  leaving 
of  the  claim  without  any  intention  of  making  any 
further  use  of  it.16    The  burden  of  proof  of  the  intent 
to  abandon  rests  upon  him  who  asserts  it  and  the 
proof  must  be  clear  and  convincing.17 

8.  TEST.    The  intention  to  return  is  the  test;18 

9.  PLEADING.  The  courts  do  not  agree  as  to  whether 
abandonment  may  be  proved  in  the  absence  of  an  alle- 
gation thereof.19 

1.   Lakin  v.  Sierra  Buttes  Co.,  25  Fed.  337. 

2^:  Brown    v.    Gurney,    201    U.    S.    184;     Wolfskill   v.    Smith,    5 

Cal.  A.  175;    Derry  v.  Ross,  5  Colo.  295;    Street  v.  Delta 
TO    )Co.,  42  Mont.  371. 
3.  power    v.    Richards,    151    U.    S.    658;     Brown    v.    Gurney, 

ante;   Cowell   v.   Lammers,    21   Fed.    200;   Badger  Co,    v. 


§72]  ABANDONMENT.        /.OI8a3a8O<!    i"105 


Stockton  Co.,  139  Fed.  838;  Utt  v..Frey,  106  Cal.  392; 
Conn  v.  Oberto,  32  Colo.  313. 

4.  Morton  v.  Solambo  Co.,  26  Cal.  528;  see  Black  v.  Elkhorn 

Co.,  163  U.  S.  445. 

5.  Moon  v.  Rollins,  36  Cal.  333;  McCarthy  v.  Speed,  11  S.  Dak. 

362.  It  is  immaterial  to  the  question  whether  the 
annual  expenditure  has  been  made  or  not.  Farrell  v. 
Lockhart,  210  U.  S.  142;  Street  v.  Delta  Co.,  ante. 

6.  Morenhaut    v.   Wilson,    52     Cal.    263;    McCarthy  v.    Speed, 

ante. 

7.  Crary  v.   Dye,   208  U.   S.    515;    Lakin  v.   Sierra  Buttes   Co., 

ante;  Moon  v.  Rollins,  ante;  Myers  v.  Spooner,  55  Cal. 
257;  McCann  v.  McMillan,  129  Cal.  350;  McCarthy  v. 
Speed,  ante. 

8.  Harkrader  v.   Carroll,   76   Fed.   474;   Moffat  v.   Blue  River 

Co.,  33  Colo.  142;  McKay  v.  McDougall,  25  Mont.  258. 

Where  the  appearance  of  a  mining  claim  unmistak- 
ably indicates  an  abandonment  of  the*  premises  for 
many  years  and  no  stakes  or  other  monuments  mark 
the  boundaries  such  evidence  warrants  the  assumption 
that  all  possessory  rights  thereto  have,  been  relin- 
quished and  authorizes  another  location  thereon. 
Strickland  v.  Com.  Co.,  (Or.)  104  Pac.  96$  *{  d'jld'tf 

By  legislative  enactment  in  California  it  is  provided 
that:  — 

§  1.  All  abandoned  mining  shafts,  pits,  or  other  aban- 
doned excavations  dangerous  to  passers-by  or  live- 
stock shall  be  securely  covered  or  fenced,  and  kept  so, 
by  the  owners  of  the  land  or  persons  in  charge  of  the 
same,  on  which  such  shafts,  pits  or  other  excavations 
are  located.  Any  person  or  persons  failing  to  comply 
with  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor. 

§  2.  All  abandoned  mining  shafts,  pits  or  other  ex- 
cavations situated  on  unoccupied  public  lands  may  be 
securely  covered  or  fenced  .by  order  of  the  board  of 
supervisors  of  the  county  wherein  the  same  is  situated, 
and  it  shall  be  the  duty  of  the  board  of  supervisors  to 
keep  the  same  securely  fenced  or  covered  whenever  it 
appears  to  them,  by  proof  submitted,  that  the  same  is 
dangerous  or  unsafe  to  man  or  beast.  The  cost  of 
said  covering  to  be  a  county  charge. 

§  3.  Any  person  or  persons  maliciously  removing  or 
destroying  any  covering  or  fencing  placed  around  or 
over  any  shaft,  pit  or  other  excavation,  as  hereinbefore 
provided,  shall  be  guilty  of  a  misdemeanor.  Cal.  Stats. 
1903,  p.  283. 

9.  Oberto  v.  Smith,  37  Colo.  21;  Sharkey  v.  Candiani,  48  Or. 

112. 

10.  Brown  v.  Gurney,  ante;  Miller  v.  Chrisman,   140  Cal.   440. 

11.  Tyler   Co.   v.    Sweeney,    54    Fed.    284;    Last   Chance   Co.   v. 

Tyler,  61  Fed.  557.  The  re-location  of  an  invalid  loca- 
tion is  not  an  abandonment  or  forfeiture  of  the  former 
location,  even  though  attempted  in  the  interest  of  the 
original  locator.  Bergquist  v.  W.  Va.  Co.,  (Wyo.)  106 
Pac.  673. 

12.  Badger  Co    v.  Stockton  Co.,  ante;    Worthen  v.  Sidway,  72 

Ark.  215;  see  Kinney  v.  Fleming,  6  Ariz.  263;  Sharkey 
v.  Candiani,  ante. 

13.  Miller   v.    Hamley,    31    Colo.    495.      Failure   to   file    an    ad- 

verse claim  because  of  ignorance  of  an  application  for 


106    POSSESSION — ABANDONMENT — FORFEITURE.    [Ch.  12 

patent  is  not  evidence  of  intent  to  abandon  the  re- 
mainder of  the  claim.  Bingham  v.  Ute  Co.,  181  Fed. 
748. 

14.  Basin  Co.  v.  White,  22  Mont.  147. 

15.  Harkrader  v.  Carroll,  ante;    Wolfskill  v.  Smith,  ante. 

16.  Bell  v.  Bed  Rock  Co.,  36  Cal.  214. 

17.  Loeser  v.  Gardiner,   1  Alaska  641;    Buffalo  Co.  v.  Crump, 

70  Ark.   525. 

18.  Stone  v.  Geyser  Co.,  52  Cal.  315;  Davis  v.  Dennis,  43  Wash. 

54. 

19.  See  Willson  v.  Cleaveland,  30  Cal.  192;  Contreras  v.  Merck, 

131  Cal.  211;  Renshaw  v.  Switzer,  6  Mont.  464;  Bishop 
v.  Baisley,  28  Or.  119. 

§  73.  Forfeiture.  Forfeiture  is  the  loss  of  the 
right  to  a  mining  claim  by  adverse  re-location1  and 
rests  upon  the  fact  of  the  non-observance  of  the  re- 
quirements of  the  mining  laws  and  district  rules 2 
which  is  taken  advantage  of  by  another.3  A  mere 
failure  to  make  the  requisite  annual  expenditure  while 
it  may  cause  a  forfeiture  does  not  constitute  an  aban- 
donment.4 

2.  PROOF.     The  law  should  be  liberally  construed 
to  prevent  a  forfeiture  5  and  the  proof  must  be  clear 
and  convincing.6 

3.  BURDEN  OF  PROOF.    The  burden  of  proof  of  for- 
feiture is  cast  upon  him  who  asserts  it.7 

4.  KEASONABLE  DOUBT.     Every   reasonable   doubt 
will  be  resolved  in  favor  of  the  validity  of  a  mining 
location,8  as  the  courts  are  reluctant  to  enforce  for- 
feiture.9 

5.  PLEADING.    The  burden  of  pleading  forfeiture  is 
upon  him  who  asserts  it.10 

6.  ABSENCE  OF  EIGHT.    The  question  of  forfeiture 
cannot  be  raised  by  one  claiming  the  ground  under  a 
void  location.11 

1.  Du  Prat  v.  James,  61  Cal.  361;  Snowy  Peak  Co.  v.  Tamar- 

ack Co.,  17  Ida.  630,  107  Pac.  60;  McCarthy  v.  Speed,  11 
S.  Dak.  362;  Knutson  v.  Fredlund,  56  Wash,  634.  The 
distinction  between  the  effect  of  an  abandonment  and 
a  forfeiture  is  pointed  out  in  McKay  v.  McDougall,  25 
Mont.  258. 

2.  Strang  v.   Ryan,   46  Cal.   34;    see  Emerson  v.  McWhirter, 

133  Cal.  510.  Ordinarily  forfeitures  are  not  favored, 
and  a  very  strict  or  severe  construction  ought  not  to 


§73]  FORFEITURE.  107 

be  placed  on  the  statute  where  the  prior  locators  have 
proceeded  in  good  faith  and  apparently  done  all  that 
is  required  by  a  fair  construction  of  the  laws  relating 
to  mining  locations.  Murray  v.  Osborne,  (Nev.)  Ill 
Pac.  31. 

3.  Lockhart  v.  Johnson,   181  U.  S.   516;    Street  v.  Delta  Co., 

42  Mont.  371. 

4.  Lakin  v.  Sierra  Buttes  Co.,  25  Fed.  337. 

5.  Emerson  v.  McWhirter,  ante. 

6.  Hammer  v.  Garfield  Co.,  130  U.  S.  291;  Book  v.  Justice  Co., 

58  Fed.  106;  McKay  v.  Neussler,  148  Fed.  86;  Callahan  v. 
James,  141  Cal.  291;  Little  Dorrit  Co.  v.  Arapahoe  Co., 
50  Colo.  431;  Power  v.  Sla,  24  Mont.  243;  s'ee  Zerres  v. 
Vanina,  134  Fed.  610;  Cunningham  v.  Pirrung,  9  Ariz. 
288.  For  a  qualification  of  the  rule,  see  Big  3  Co.  v. 
Hamilton,  157  Cal.  130. 

7.  Hammer  v.  Garfield  Co.,  ante;  Whalen  Co.  v.  Whalen,  127 

Fed.  611;  Quigley  v.  Gillett,  101  Cal.  462;  Callahan  v. 
James,  ante;  Hall  v.  Kearney,  18  Colo.  505;  Coleman 
v.  Curtis,  12  Mont.  301. 

8.  Thornton  v.  Kaufman,  40  Mont.  282. 

9. ^Copper  Co.  v.  Butte  &  Corbin  Co.,  39  Mont.  487. 

10.  Power  v.  Sla,  ante;  Bishop  v.  Baisley,  28  Or.  119;  but  see 

Holmes  v.  Salamanca  Co.,  5  Cal.  A.  659. 

11.  Knutson  v.  Fredlund,  ante; 


CHAPTER  XIII. 

REMEDIES. 

§  76.  Condemnation  proceedings — constitutional  provision — 
limitation  of  power — public  use. 

§  76a.  Recent  Californian   legislation. 

§  77.   Easements — vested  rights — right  of  way — damages. 

§  78.  Laches — unlike  limitations — equitable  defense — delay — 
measure  of  diligence — pleading  laches — plaintiff's  alle- 
gations. 

§  79.  Liens — not  impaired  by  patent — loss  of  lien — mechanic's 
liens — purpose — contract  essential — protection  of  owner 
— statutory  requirement— indemnification — subordinate 
to  mortgage. 

§80.  Master  and  servant  —  fellow  servants  —  assumption  of 
risk — legislative  safeguards — limiting  hours  of  labor — 
constitutionality  of  act. 

§  80a.  Recent  Californian  legislation. 

§  81.  Partition — agreed  partition — arbitration — mining  right. 

§  82.  Patent — bona  fide  purchaser — burden  of  proof — fraud- 
ulent patentee — not  attack  upon  patent — status  of 
trustor — fraud — application  to  sue — false  testimony  in- 
sufficient. 

§  83.  Rescission — condition  precedent — application  of  rule — 
grounds  for  rescission — salting — unintentional  salting 
— remedies — insufficient  grounds  for  rescission — mark- 
etable title. 

§  84.  Statute  of  limitations — establishes  right  to  patent — con- 
trolling factor — Californian  provisions. 


RRM..:nn.:s. 


[Ch.  13 


damages — good  faith  of  trespasser — pleading — model. 


§  76.  Condemnation  Proceedings.  The  Federal 
government's  general  sovereignty  of  eminent  domain 

within  a  state  or  territory  x  is  not  delegated  to  the 

i  •        j_ 
mining  claimant. 

2.  CON.STITUTIOXAL,  PROVISION.    The  power  to  exer- 
cise the  right  of  eminent  domain  by  a  mining  claimant 
exists  by  virtue  .of  a  .local  constitutional  provision. 

3.  LIMITATION  OF  POWER.    In  the  absence  of  such  a 
provision  a  local  legislature  has  no  power  to  authorize 
the  taking  of  private  property  for  mining  purposes.- 

4.  PUBLIC    USE.     When  mining  is    expressly  de* 
clared,  by  a  constitutional  provision,  to  be  a  public 
use,   as   in   Colorado,3   Nevada,4   and  Utah 5   a  local 
statute  authorizing  the  taking  of  land,  by  a  mining* 
company  for  its  ow;n  purposes,  as,  for  instance,  a  right 
of  way  through  another's  mining  claim  for  a  tunnel  in 
operating  its  mining  claim  iera  taking  for  a  public 
use.6 

1.  See  Kohl  v.  U.  S.,  91  V.  S.  367;  Burley  v.  U.  S.,  179  Fed.  1; 

Postal  Tel. -Co.  v.  O.  S.  L,.  Ry.  Co.,  23  Utah,  474;  Jon*s 
v.  U.,  S.  48  Wis.  385;  but  see  Gilmer  v.  Lime  Point,  18 
Cal.  229;  see  §28,  note  23,  ante. 

2.  Con.    Channel   Co.   v.   C.    P.   R.    Co.,    51   Cal.    269;   Lorenz   v. 

Jacob,  63  Cal.  73;  Sutter  Co.  v.  Nichols,  152  Cal.  688; 
People  v.  District  Court,  11  Colo.  147;  see  Clark  v. 
Nash,  198  U.  S.  361;  compare  Strickley  v.  Highland  Boy 
Co.,  200  U.  S.  527. 

3.  Tripp  v.  Overocker,  7  Colo.  72;  Downing  v.  More,   12  Colo. 

31$;  see  People  v.  District  Court,  ante;  Tanner  v. 
Treasury  Co.,  35  Colo.  509. 

4.  Byrnes  v.  Douglas,   83   Fed.   45;   Dayton   Co.  v.  Seawell,   11 

Nev.  394;  Overman  v.  Corcoran,  15  Nev.  147. 

5.  Highland  Boy  Co.  v.  Strickley,  28  Utah  215;  affd.  in  200  U. 

S.  527;  Clark  v.  Nash,  27  Utah  158;  affd.  in  198  U.  S. 
Wfc 

6.  Fiyrri'-s   v.  Douglas,  ante;  sf-e  Tanner  v.  Treasury  Co.,  ante. 

;  76a.  Recent  Californian  Legislation.  Recent 
Cfjlifoniian  legislation  (approved  April  5,  1911,)  in 
relation  to  mining  rights  is  shown  in  the  subjoined 
note.1 


877]  EASEMENTS.  !<>:» 

i       i  -'38  (C.  C.  P.)  1.  The  right  of  eminent  domain  may  be 
raised  in  behalf  of  the  following  public  u 

Koads,  tunnels,  ditches,  Human,  pipes  and  dump- 
ing placet  for  U..II.UIK  mines,  alto  outlets,  nnim  ai  01 
ot  i"-'  u  i  •'•,    foi    i  ho    flow,    deposit,    or   conduct    of   tail- 
ings or  refuse  matter  frora  mines,  also  an  ocoup 
>«   con  ......  ii   i»y    Hi--  owners  or  posn-  «-"i 

mill.  plaro     I'm      !  In-     |],,\v.    ib-p.i::i  I  .    or    romlm-l     .,1 

i.nii.i  .-.  .  DI    M-IIIMU   in.  ui.  -i    iiom   ih.-ii-  several   minus. 
10.  (  HI  pipe  III 
1-.  Canals,   reservoirs,  dam*,  ditches,  flumes,  acque- 

<lm  'I.,     .in,  I     pip,-::     ami     ,..,(  !,•(..     ,,    ,l  ,,,  .il     or    ntln-i  wl::.-.     loi 

.Mi.pi\  in;-.,    storing,    and    <M  .i  .  ii.ui  n.  i.,.-    n,,- 

"I"  -i.  ill.  in     nl'     marliim-i  V     loi      the     p  in  p  «).!,-    <>!      >-..-in-i    illnr. 

and   transmitting   electricity    i-«i    MM-  supply   of  nun.-:. 
•  i  M.I  .  i  i.-...   i  ..HI  ,,  i,  i  ...   i  .  an.u  .  ,  ..   rnlllH    i  ml   .  with 

elect  pic  powej  .  and  also  foi   i  he  applying  of  elect  i 

h»   i  h-.bi    or   hea  i    mines,   qu  in  les,   mi  Us,    factories,    m 

corpora  tod  cities    md  oountl^M,  \  H  i  i  .-.  .  •  •.  01    townn;    .nni 

•   r.ir   rin  Miv.iMiM-.  .-I.-,  -i  i  i.-ii  v    i  ...    h;-.hi  ing,  hen  i  h 

|)M\viT       p  II  I  p<  ).•!«-.".       to       liiillvbhi   i  !::       MI        O.OTpOl    itlOMH,       li» 

^.'•Ili'-i      \\iili      I.  iiiil.:.     lui  I  Id  i  tiKM     ami     all     nlh.-r     imp. 

ments  in   ot   upon    wi.i.-h    i,,  erect,    Install,    place 

or  operate  nia.-him-rv    for    the    purp  Derating 

ami     I  i    i  liMMll  I  I  in;;    rl<T.|  i  Id  I  y     I  01     .1  n  y    <»  I'    I  In-    pu  i  pi.::,-;-.    DI 
.     .-    ...-I      I',.  i  I  Ii 

i:    i  •:!.-,  -irb-    power    lines,    electric     treat     MM.-M. 
.•I.-.-I.M    light,   ii'-M   .",,1   powei    lines,     s<«»>  5  70-2,  §76, 

m.h-     ".     ;i  M  li- 

ft, 1989,     ;rii.-    following    Is   .1    classification   »r  the  es- 

I.M-.     and    Mr.hiM    in    laii.i.:    subject    i"    be   taken    foi 

pnl.lir     IIHO. 

i.    \   I'l-i-  ..i  m  pi.-,  win-  n  inker   i"'   public  bui  i.i  i  n  r. 

Hi'l  •    .        Of        I  "'         I"''   "I    '  M'-lll        blllldlllKM,        I'l.l         : 
a  1  1  1  1     .  1   i  1  1  1   :  .     ami     p  •  •  i  1  1  1  a  n  •  •  n  I      1  1  .....  I  i  i  .  .  m  •  ,  I     MM: 

01    i  or  ;i"  "ui  i.  -i   i,»r  a   flow,  01    '  place  foi   i  he  depo  ill 
..i  debris  or  tailings  ••!•    ,  mine. 

'i.     An      caM-rm-nl.      \\li.-n      laki-n      !<>i          nn         ..fli.a 
OHT*-      I'oll  own     prOVlSO     AS     I"     taking     I'V     a      niiinl.ipil 

corporation) 

The  i  M-.iii  ,.i  ,-t,i  i  \    i  .....  n  and  occUpa  i  Ion  ol   land 

i  ml      I  In-      i  ii-.bl      I  «.     la  \.<-     I  I.,   i  .-I  i  ..m      Mlirli 

I  on.-::.      f  i  .  .•::.      a  ml       I  hub.  a       (IM      ma  \       I..-      n.-.  -.-  ...-a  i  \        I    ,i 
••     pnblli-     USO. 

See  C.  C.  P.,  99  12-n>.   1241,   Li49(    see  I  28-14,  am.-. 

§77,    Easements,     Knscincufs    r«»r    ihr    working 


Ix-cii   Irl'l    l»y   C6ngre88   l<>  Ini-.-il    |;i\v  '      l>i";hlM  of 
\\:i\'    «»\T|-    piihlir    |;IIM|:;    ;i|-<-    "f;inli-(|    l.y    <  'MM  I'lVHS.- 

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110  REMEDIES.  tCh.  13 

as  may  have  been  acquired  under  or  recognized  by  the 
provisions  of  the  mining  act.3 

3.  EIGHT  OF  WAY.    No  legal  proceedings  are  neces- 
sary to  establish  a  right  of  way  over  public  lands.4 
An  unpatented  mining  claim  being  property  5  no  right 
of  way  can  be  acquired  therein  or  thereunder  without 
the  acquiescence  of  the  owner  thereof  except  by  con- 
demnation proceedings  under  a  valid  local  statute.6 

4.  DAMAGES.     When  in  the  construction  of  any 
ditch  or  canal,  the  possession  of  any  settler  on  the 
public  domain  is  injured  or  damaged,  the  party  com- 
mitting such  injury  or  damage  is  liable  therefor  to 
the  party  injured.7 

1.  Rev.  Stats.,  §§2338-2339;  Calhoun  Co.  v.  Ajax  Co.,  182  U.  S. 

499;  Woodruff  v.  North  Bloomfield  Co.,  18  Fed.  753; 
Amador  Queen  Co.  v.  Dewitt,  73  Cal.  482;  Quinlan  v. 
Noble,  75  Cal.  250.  By  legislative  enactment  in  Cali- 
fornia, "All  mining  locations  and  mining  claims  shall 
be  subject  to  a  reservation  of  the  right  of  way  through, 
or  over  any  mining  claims,  ditches,  roads,  canals,  cuts," 
tunnels,  and  other  easements  for  the  purpose  of  work- 
ing other  mines;  provided,  that  any  damage  occasioned 
thereby  shall  be  assessed  and  paid  for  in  the  manner 
provided  by  law  for  land  taken  for  public  use  under 
the  right  of  eminent  domain.  Cal.  Stats.  1891,  p.  219. 

2.  Rev.    Stats.,   §   2477;    28   Stats.    635;   29   Stats.   120;    30   Stats. 

404;  Circular  18  L.  D.  168;  Regulations  27  L.  D.  495; 
Circular  31  L.  D.  13;  Circular  33  L.  D.  451;  Big  Horn 
R.  Co.,  39  L^D.  174. 

3.  Rev.  Stats.  §  2340. 

4.  Hobart  v.  Ford,  6  Nev.  77;  Yunker  v.  Nichols,   1  Colo.   551; 

Tynon  v.  Despain,  22  Colo.  240;  Stoner  v.  Zucker,  148 
Cal.  516. 

5.  Forbes  v.  Gracey,  94  U.  S.  762. 

6.  Miocene  Co.  v.  Jacobson,  146  Fed.  680.  , 

7.  Rev.  Stats.,  §2339;    Jennison  v.  Kirk,  98  U.  S'.  453;    Titcomb 

v.  Kirk,  51  Cal.  288;    Yunker  v.  Nichols,  ante. 


§  78.  Laches.  Laches  is  the  neglect  or  failure  to 
actively  assert  a  right  in  or  to  property  within  a  rea- 
sonable time,  under  the  facts  of  the  particular  case, 
after  a  cause  of  action,  in  relation  thereto,  has  arisen. 

2.  UNLIKE  LIMITATIONS.  Laches  is  not  like  limita- 
tion, a  mere  matter  of  time,  but  principally  a  question 
of  the  inequity  of  permitting  the  claim  to  be  enforced ; 


§  78]  LACHES.  Ill 

an  inequity  founded,  for  instance,  upon  some  change 
in  the  condition  or  the  relation  of  the  party  or  parties.1 

3.  EQUITABLE  DEFENSE.     Inexcusable  delay  for  a 
period  short  of  the  time  provided  by  the  statute  of 
limitations  may  constitute  laches,  and  is  an  equitable 
defense  wholly  independent  and  outside  of  the  statute 
of  limitations,  whenever  the  relief  sought  is  wholly 
equitable.2 

4.  DELAY.     Delay  cannot  be   excused   except  by 
some  actual  hindrance  or  impediment  caused  by  the  ' 
fraud  or  concealment  of  the  party  in  possession.3 

5.  MEASURE  OF  DILIGENCE.    In  some  cases  the  dili- 
gence required  is  measured  by  months  rather  than 
years ;  in  others  a  delay  of  2,  3,  or  4  years  has  been 
held  fatal.4     The  speculative  character  of  a  mining 
claim  requires  prompt  action  in  asserting  an  adverse 
right  therein.5 

6.  PLEADING  LACHES.     When    a    suit    is    brought 
within  the  time  limited  by  the  statute  of  limitations 
the  burden  is  upon  the  defendant  to  show,  by  de- 
murrer or  answer,  that  unusual  conditions  or  extraor- 
dinary circumstances  exist  which  require  the  applica- 
tion of  the  doctrine  of  laches.6 

7.  PLAINTIFF'S  ALLEGATIONS.  When  suit  is  brought 
after  the  statutory  time  has  elapsed  the  burden  is  on 
the  plaintiff  to  show  by  suitable  allegations  in  the 
complaint  that  it  would  be  inequitable  to  apply  it  to 
his  case.7 

1.  Galliher  v.  Cadwell,   145  U.  S.  368;    Ward  v.  Sherman,   192 

U.  S.  168. 

2.  Scruggs  v.  Decatur  Min.  Co.,   8.6  Ala.   173.     See  Morrow  v. 

Matthew,  10  Ida.  423. 

3.  Wagner  v.  Baird,  7  How.  234;  Lansdale  v.  Smith,  106  U.  S. 

391;    Westerman  v.  Dinsmore,   (W.  Va.)   71  S.  E.  250. 

4.  Patterson  v.  Hewitt,  195  U.  S.  309;  Starkweather  v.  Jenner, 

216  U.  S.  524. 

5.  Twin  Lick  Co.  v.  Marbury,  91  U.  S.  587;  Johnston  v.  Stand- 

ard Co.,  148  U.  S.  360;  Patterson  v.  Hewitt,  ante. 

6.  Stevens  v.  Grand  Cent.  Co.,  133  Fed.  28. 

7.  Id. 


112  REMEDIES.  [Ch.  13 

§  79.  Liens.  A  lien  upon  a  mining  claim  may  be 
created  by  contract,  as,  by  mortgage,1  by  operation  of 
law,  as,  for  taxes,2  by  a  judgment  of  a  court,3  or  by  a 
proceeding  under  a  mechanic's  lien  law.4 

2.  NOT  IMPAIRED  BY  PATENT.     No  lien  which  has 
attached  to  a  mining  claim  is  impaired  by  the  issuance 
of  a  patent  therefor.5 

3.  Loss  OF  LIEN.    A  lien  may  be  waived ;  6  or  lost 
by  the  effluxion  of  time.7 

4.  MECHANIC'S  LIEN.    A  mechanic's  lien  is  a  crea- 
ture of  a  local  statute,  which  should  be  consulted  and 
substantially  followed.8 

5.  PURPOSE.     Its  purpose  is  to  secure  the  unpaid 
wages  of  those  doing  manual  labor  in  or  upon  a  min- 
ing claim  or  mill  or  reduction  works;9  also  the  debt 
due  to  the  material-man,  that  is,  the  person  who  fur- 
nishes materials  actually  used  in   the    improvement, 
alteration  or  repair  of  such  property.10 

6.  CONTRACT  ESSENTIAL.     The  work  must  be  done 
or  the  materials  must  be  furnished  under  a  contract, 
express  or  implied,  with  one  in  lawful  possession  of  the 
property  as  the  owner,  agent,  receiver,  lessee,11  or  one 
working  the  claim  under  an  option  or  working  bond.12 

7.  PROTECTION  OF  OWNER.    When  property  is  be- 
ing worked  by  one  other  than  the  owner  the  latter 
usually  protects  the  property  from  possible  lien  by 
posting  notice  thereon  to  the  effect  that  the  property 
is  being  so  worked  and  that  he  will  not  be  responsible 
for  any  debt  or  charge  created  thereby.13 

8.  STATUTORY  REQUIREMENT.     Sometimes    a   local 
statute  requires  that  such  a  notice,  to  be  effective, 
must  be  verified  and  recorded  within  a  certain  num- 
ber of  days  after  its  posting  upon  the  property.13a 

9.  INDEMNIFICATION.     It  is  not  unusual    for    the 
owner  to  exact  an  indemnity  bond  from  the  party 
working  the  property  or  to  require  that  all  persons 
employed  in  or  furnishing  materials  to  the  claim  shall 


§  79]  LIENS.  113 

contract  in  writing  to  look  only  to  the  latter  person 
and  not  to  the  property  for  their  pay.14 

10.  SUBORDINATE  TO  MORTGAGE.  Claims  for  ma- 
terials, supplies  and  labor  furnished  to  a  mining 
claim  before  the  appointment  of  a  receiver  are  sub- 
ordinate to  a  prior  mortgage.15 

1.  Forbes  v.  Gracey,  94  U.  S.  762. 

2.  Graciosa   Oil   Co.   v.    Sta.   Barbara   Co.,    155   Cal.    140;     see 

Forbes  v.  Gracey,  ante. 

3.  Bradford  v.  Morrison,  212  U.  S.  389;  Butte  H.  Co.  v.  Frank, 

25  Mont.  344. 

4.  Gary  Co.  v.  McCarty,  10  Colo.  A.  200. 

5.  R$y.  Stats.,  §  2332. 

6.  Bowen  v.  Aubrey,  22  Cal.   566;  Hughes  v.  Lansing,  34  Or. 

118;    see  Cal.  C.  C.  P.,  §  1202. 

7.  Burns  v.  White  Swan  Co.,  35  Or.  305. 

8.  Church  v.  Smithea,  4  Colo.  A.  175;  see  Davis  v.  Alford,  94 

U.  S1.  545;  Labor  expended  by  a  blacksmith,  Malone  v.  Big 
Flat  Co.,  76  Cal.  578;  boss  and  time  keeper,  Capron  v. 
Strout,  11  Nev.  304;  cook,  Cascaden  v.  Wimbish,  161  Fed. 
241;  but  see  McCormick  v.  Los  Angeles  Co.,  40  Cal. 185; 
foreman,  overseer  and  watchman,  Flagstaff  Co.  v.  Col- 
lins, 104  U.  S'.  178;  Idaho  Co.  v.  Davis,  123  Fed.  396;  but 
see  Barnard  v.  McKenzie,  4  Colo.  251;  superintending 
work  on  mill  and  machinery,  Kara  Avis  Co.  v.  Bouscher, 
9  Colo.  385;  teamster,  Gray  v.  N.  M.  Co.,  (N.  M.)  110  Pac. 
102;  or  upon  a  house  contiguous  to  a  mining  claim, 
Keystone  Co.  v.  Gallagher,  5  Colo.  23;  in  a  lime  kiln, 
Gray  v.  N.  M.  Co.,  ante;  Thompson  v.  Wise  Boy  Co.,  9 
Ida.  363;  Williams  v.  Mountaineer  Co.,  102  Cal.  134;  or 
in  operating  a  hoist,  Tredinnick  v.  Red  Cloud  Co.,  72 
Cal.  78;  milling  ore  Thompson  v.  Wise  Boy  Co.,  ante; 
cleaning  up  and  washing  gold  from  a  mining  claim, 
Cascaden  v.  Wimbish,  ante,  furnish  a  basis  for  a  claim 
of  lien  upon  a  mining  claim. 

9.  Palmer  v.  Uncas  Co.,   70  Cal.   614;  Reese  v.  Bald  Mt.  Co., 

133  Cal.  285;  Higgins  v.  Carlotta  Co.,  148  Cal.  700; 
Lindemann  v.  Beldeh  Con.  Co.,  16  Colo.  A.  342;  Cullins  v. 
Flagstaff  Co.,  2  Utah  219;  see  Smallhouse  v.  Kentucky 
Co.,  2  Mont.  443;  Boyle  v.  Mt.  Key  Co.,  9  N.  M.  237; 
Gould  v.  Wise,  18  Nev.  253. 

10.  Sylvester  v.  Coe  Co.,  80  Cal.  510. 

11.  Higgins  v.  Carlotta  Co.,  ante;  Jurgenson  v.  Diller,  114  Cal. 

491;  Traylor  v.  Barry,  96  111.  A.  644;  Stinson  v.  Hardy, 
27  Or.  584;  see  Donohoe  v.  Trinity  Co.,  113  Cal.  119; 
Lewis  v.  Beeman,  46  Or.  311. 

12.  Hines   v.   Miller,    122    Cal.    517.      The   holder   of   an   option 

is  not  a  vendee  nor  an  agent  of  the  owner;  Harper  v. 
Independence  Co.,  (Ariz.)  108  Pac.  701. 

13.  Hamilton  v.  Delhi  Co.,  118  Cal.  148;  Gould  v.  Wise,  ante; 

see  Jno.  R.  Gentle  &  Co.  v.  Britton,    (Cal.)   Ill  Pac.   9; 
Williams  v.  Eldora  Co.,  35  Colo.  127;  Idaho  Co.  v.  Win- 
chell,  6  Ida.  729. 
13a.  See  Cal.  C.  C.  P.  §  1192. 

14.  Settle  v.  Winters,  2  Idaho   (Hasb.)    215. 

15.  Fidelity  Co.  v.  Shenandoah  Co.,  42  Fed.  372. 


114  REMEDIES.  [Ch.  13 

§  80.  Master  and  Servant.  The  master  must  pro- 
vide the  servant  with  a  reasonably -safe  place  to  work  x 
and  reasonably  safe  appliances  to  work  with.2 

2.  FELLOW  SERVANTS.    The  master  is  not  liable  for 
injury  to  a  servant  resulting  from  the  negligence  of  a 
fellow  servant.3 

3.  ASSUMPTION  OF  EISK.    Where  a  servant  enters 
upon  or  continues  in  a  dangerous  employment  with 
either  knowledge  of  the  danger  or  full  opportunity  to 
observe  the  conditions  making  the  employment  dan- 
gerous he  assumes  the  risk  of  such  employment.4 

4.  LEGISLATIVE    SAFEGUARDS.     In   California   and 
elsewhere  it  is  provided  under  what  circumstances  the 
mine  owner  shall  furnish  a  second  means  .of  escape 
from  quartz  mines,5   distinct  means  of  ingress  and 
egress  from  and  ventilation  of  coal  mines,6  a  uniform 
system  of  bell  signals  to  be  used  in  all  mines  7  and  the 
liability  to  be  incurred  by  acts  of  omission. 

5.  LIMITING  HOURS  OF  LABOR.    In  California,  as  in 
other  mining  states,  the  hours  for  persons  employed 
in  underground  work  and  in  the  reduction  and  refin- 
ing of  ores  and  metals  is  limited  to  8  hours  in  every 
24  hours  for  each  person  so  employed,  except  in  cases 
of  emergency,  where  life  or  property  is  in  imminent 
danger.8 

6.  CONSTITUTIONALITY  OF  ACT.    Such  an  act  is  con- 
stitutional.9 

1.  Western  Coal  Co.  v.  Ingraham,  70  Fed.  219;  Utah  Con.  Co. 

v.  Bateman,  176  Fed.  57. 

2.  Mt.  Copper  Co.  v.  Van  Buren,  133  Fed.  1. 

3.  Id. 

4.  Bunker  Hill  Co.  v.  Kettleson,  121  Fed.  529;  Utah  Con.  Co. 

v.  Bateman,  ante. 

5.  Quartz  Mines.     §  1.  It  shall  not  be  lawful  for  any  corpora- 

tion, association,  owner,  or  owners  of  any  quartz  min- 
ing claims  within  the  State  of  California,  where 
such  corporation,  association,  owner,  or  owners  employ 
twelve  men  daily,  to  sink  down  into  such  mine  or 
mines  any  perpendicular  shaft  or  incline  beyond  a 
depth  from  the  surface  of  three  hundred  feet  without 
providing  a  second  mode  of  egress  from  such  mine,  by 
shaft  or  tunnel,  to  connect  with  the  main  sha'ft  at  a 
depth  of  not  less  than  one  Hundred  feet  from  the 
surface. 


}80]  MASTER  AND   SERVANT.  115 

§  2.  It  shall  be  the  duty  of  each  corporation,  associa- 
tion, owner,  or  owners  of  any  quartz  mine  or  mines  in 
this  state,  where  it  becomes  necessary  to  work  such 
mines  beyond  the  depth  of  three  hundred  feet,  and 
where  the  number  of  men  employed  therein  daily  shall 
be  twelve  or  more,  to  proceed  to  sink  another  shaft  or 
construct  a  tunnel  so  as  to  connect  with  the  main 
working-  shaft  of  such  mine  as  a  mode  of  escape  from 
underground  accident,  or  otherwise. 

And  all  corporations,  associations,  owner,  or  owners 
of  mines  as  aforesaid,  working  at  a  greater  depth  than 
three  hundred  feet,  not  having  any  other  mode  of 
egress  than  from  the  main  shaft,  shall  -  proceed  as 
herein  provided. 

§  3.  When  any  corporation,  association,  owner,  or 
owners  of  any  quartz  mine  in  this  state  shall  fail  to 
provide  for  the  proper  egress  as  herein  contemplated, 
and  therein  shall  be  hurt  or  injured,  and  from  such 
injury  might  have  escaped  if  the  second  mode  of 
egress  had  existed,  such  corporation,  association, 
owner,  or  owners  of  the  mine  where  the  injuries  shall 
have  occurred  shall  be  liable  to  the  person  injured  in 
all  damages  that  may  accrue  by  reason  thereof;  and 
an  action  at  law  in  a  court  of  competent  jurisdiction 
may  be  maintained  against  the  owner  or  owners  of 
such  mine,  which  owners  shall  be  jointly  or  severally 
liable  for  such  damages.  And  where  death  shall  ensue 
from  injuries  received  from  any  negligence  on  the  part 
of  the  owners  thereof,  by  reason  of  their  failure  to 
comply  with  any  of  the  provisions  of  this  act,  the 
heirs  or  relatives  surviving  the  deceased  may  com- 
mence an  action  for  the  recovery  of  such  damages  as 
provided  by  an  act  entitled  an  act  requiring  compen- 
sation for  causing  death  by  wrongful  act,  neglect,  or 
default,  approved  April  twenty-sixth,  eighteen  hun- 
dred and  sixty-two.  Cal.  Stats.  1871-1872,  p.  413. 

For  the  use  of  safety  cages  and  iron  bonnets  in 
vertical  shafts  in  Nevada,  see  Nev.  Stats.  1905,  p.  199. 
>.  Coal  Mines.  §  1.  The  owner  or  agent  of  every  coal  mine 
shall  make  or  cause  to  be  made  an  accurate  map  or 
plan  of  the  workings  of  such  coal  mine,  on  a  scale  of 
100  feet  to  the  inch. . 

§  2.  A  true  copy  of  which  map  or  plan  shall  be  kept 
at  the  office  of  the  owner  or  owners  of  the  mine,  open 
to  the  inspection  of  all  persons,  and  one  copy  of  such 
map  or  plan  shall  be  kept  at  the  mines  by  the  agent 
or  other  person  having  charge  of  the  mines,  open  to 
the  inspection  of  the  workmen. 

§  3.  The  owner  or  agent  of  every  coal  mine  shall 
provide  at  least  two  shafts,  or  slopes,  or  outlets,  sep- 
arated by  natural  strata  of  not  less  than  150  feet  in 
breadth,  by  which  shafts,  slopes,  or  outlets  distinct 
means  of  ingress  and  egress  are  always  available  to 
the  persons  employed  in  the  coal  mine;  provided,  that 
if  a  new  tunnel,  slope,  or  shaft  will  be  required  for 
the  additional  opening,  work  upon  the  same  shall  com- 
mence immediately  after  the  passage  of  this  act,  and 
continue  until  its  final  completion,  with  reasonable 
dispatch. 

§  4.  The    owner    or    agent    of    every    coal    mine    shall 


116  REMEDIES.  [Ch.  13 

provide  and  establish  for  every  such  mine  an  adequate 
amount  of  ventilation,  of  not  less  than  55  cubic  feet 
per  second  of  pure  air,  or  3300  feet  per  minute,  for 
every  50  men  working  in  such  mine,  and  as  much 
more  as  circumstances  may  require,  which  shall  be 
circulated  through  to  the  face  of  each  and  every  work- 
ing place  throughout  the  entire  mine,  to  dilute  and 
render  harmless  and  expel  therefrom  the  noxious,  poi- 
sonous gases,  to  such  an  extent  that  the  entire  mine 
shall  be  in  a  fit  state  for  men  to  work  therein,  and  be 
free  from  danger  to  the  health  and  lives  of  the  men 
by  reason  of  such  noxious  and  poisonous  gases,  and 
all  workings  shall  be  kept  clear  of  standing  gas. 

§  5.  To  secure  the  ventilation  of  every  coal  mine, 
and  provide  for  the  health  and  safety  of  the  men 
employed  therein,  otherwise  and  in  every  respect,  the 
owner,  or  agent,  as  the  case  may  be,  in  charge  of 
every  coal  mine,  shall  employ  a  competent  and  prac- 
tical inside  overseer,  who  shall  keep  a  careful  watch 
over  the  ventilating  apparatus,  over  the  air-ways,  the 
travelling-ways,  the  pumps  and  sumps,  the  timbering, 
to  see  as  the  miners  advance  in  their  excavations  that 
all  loose  coal,  slate,  or  rock  overhead  is  carefully  se- 
cured against  falling;  over  the  arrangements  for  sig- 
naling from  the  bottom  to  the  top,  and  from  the  top 
to  the  bottom  of  the  shaft  or  slope,  and  all  things 
connected  with  and  appertaining  to  the  safety  of  the 
men  at  work  in  the  mine.  He,  or  his  assistants,  shall- 
examine  carefully  the  workings  of  all  mines  generat- 
ing explosive  gases,  every  morning  before  the  miners 
enter,  and  shall  ascertain  that  the  mine  is  free  from 
danger,  and  the  workmen  shall  not  enter  the  mine 
until  such  examination  has  been  made  and  reported, 
and  the  cause  of  danger,  if  any,  be  removed. 

§  6.  The  overseer  shall  see  that  hoisting"  machinery 
is  kept  constantly  in  repair  and  ready  for  use,  to  hoist 
the  workme,n  in  or  out  of  the  mine. 

§  7.  The  word  "owner"  in  this  act  shall  apply  to 
lessee  as  well. 

§  8.  For  any  injury  to  person  or  property  occasioned 
by  any  violation  of  this  act,  or  any  wilful  failure  to 
comply  with  its  provisions,  a  right  of  action  shall 
accrue  to  the  party  injured  for  any  direct  damages  he 
or  she  may  have  sustained  thereby,  before  any  court 
of  competent  jurisdiction. 

§  9.  For  any  wilful  failure  or  negligence  on  the  part 
of  the  overseer  of  any  coal  mine,  he  shall  be  liable  to 
conviction  of  misdemeanor,  and  punished  according  to 
law:  provided,  that  if  such  wilful  failure  or  negligence 
is  the  cause  of  the  death  of  any  person,  the  over- 
seer, upon  conviction,  shall  be  deemed  guilty  of  man- 
slaughter. 

§  10.   All    boilers    used    for    generating    steam    in    and 

../,-,    ,   about  coal  mines  shall  be  kept  in  good  order,  and  the 

owner  or  ac;ent  thereof  shall  have  them  examined  and 

(M(I.     .inspecterl,    by    a    competent    boiler-maker,    as    often    as 

once  in  three  months. 

§11.   This  act  shall  not  apply  to  opening  a  new  coal 

§  12.  This  act  shall  take  effect  immediately. 


MASTER  AND   SERVANT.  117 

Cal.  Stats.  1873-1874,  p.  726.  See,  generally,  Deserant 
v.  Cerillos  Co.,  178  U.  S'.  409;  Carterville  Co.  v.  Abbott, 
181  111.  495;  Pawnee  Co.  v.  Royce,  184  111.  402;  Athens 
Co.  v.  Carnduff,  221  111.  354;  Sans  Bois  Co.  v.  Janeway, 
22  Okla.  154;  Czarecki  v.  Seattle  Co.,  30  Wash.  288. 
7.  Ariz.  Stats.  1907,  p.  118;  Cal.  Stats.  1893,  p.  82;  Mills  Ann. 
Stats.  (Colo.)  Rev.  Sup.,  §  3220f ;  B.  &  C.  Codes  (Or.) 
§§  3987-3988;  see  Manning  v.  App.  Con.  Co.  149  Cal.  35. 

Bell  Signal  Act.  §  1.  Every  person,  company,  cor- 
poration, or  individual,  operating  any  mine  within  the 
State  of  California-^-gold,  silver,  copper,  lead,  coal,  or 
i] w<>  any  other  metal  or  substance — where  it  is  necessary 
to  use  signals  by  means  of  bell  or  otherwise,  for 
shafts,  inclines,  drifts,  crosscuts,  tunnels,  and  under- 
ground workings,  shall,  after  the  passage  of  this 
bill  adopt,  use  and  put  in  force  the  following  system 
or  code  of  mine  bell  signals,  as  follows: — 

1   bell,  to  hoist.     (See  Rule  2.) 

1  bell,   to  stop  if  in  motion. 

2  bells,  to  lower.     (See  Rule  2.) 

3  bells,  man  to  be  hoisted,  run  slow.      (See  Rule  2.) 

4  bells,   start  pump,  if  not  running,   or  stop  pump  if 
running. 

1  — •  3   bells,  start  or  stop  air  compressor. 

5  bells,  send  down  tools.      (See  Rule  4.)  :  >;> 

6  bells,  send  down  timbers.      (See  Rule  4.) 

7  bells,    accident;    move    bucket   or   cage     by     verbal 
orders  only. 

1  — ,4   bells,  foreman  wanted. 

2  —  1  • —  1   bells,  done  hoisting  until  called. 
2 — •!  —  2   bells,  done  hoisting  for  the  day. 

2  —  2  —  2  bells,  change   buckets   from   6re   to; ,  water, 
or  vice  versa.  ,,,w 

3  —  2  —  1   bells,  ready    to    shoot    in    the   shaft.      (See 
Rule  3.) 

Engineer's  signal,  that  he  is  ready  to  hoist,  is  to 
raise  the  bucket  or  cage  two  feet  and  lower  it  again. 
(See  Rule  3.) 

Levels  shall  be  designated  and  inserted  in  notice 
hereinafter  mentioned.  (See  Rule  5.) 

§  2.  For  the  purpose  of  enforcing  and  properly  un- 
derstanding the  above  code  of  signals,  the  following 
rules  are  hereby  established: — 

Rule  1 — -In  giving  signals  make  strokes,,  on  bell  at 
regular  intervals.  The  bar  ( — >  must  take  the  same 
time  as  for  one  stroke  of  the  bell,  and  no  more.  If 
timber,  tools,  the  foreman,  bucket  or  cage  are  wanted 
to  stop  at  any  lev^el  in  the  mine,  signal  by  number  of 
strokes  on  the  bell,  number  of  the  level  first  before 
giving  the  signal  for  timber,  tools,  etc.  Time  between 
signals  to  be  double  bars  ( ).  Examples: — 

6 5  would  mean  stop  at  sixth  level  with  tools. 

4 1  —  1  —  1— — 1,  would  mean  stop  at  fourth 

level,  man  on,  hoist. 

2 1  —  4  would  mean  stop  at  second  level  with 

foreman. 

Rule  2— No  person  must  get  off  or  on  the  bucket  or 
cage  while  the  same  is  in  motion.  When  men  are  to 
be  hoisted  give  the  signal  for  men.  Men  must  then 
get  on  bucket  or  cage,  then  give  the  signal  to  hoist. 


118  REMEDIES.  [Ch.  13 

Bell   cord  must  be   in   reach   of  man   on  the  bucket  or 
cage  at  stations. 

Rule  3. — After  signal  "Ready  to  shoot  in  shaft," 
engineer  must  give  his  signal  when  he  is  ready  to 
hoist.  Miners  must  then  give  the  signal  of  "Men  to  be 
hoisted,"  then  "spit  fuse,"  get  into  the  bucket,  and 
give  the  signal  to  hoist. 

Rule  4 — All  timbers,  tools,  etc.,  "longer  than  the 
depth  of  the  bucket,"  to  be  hoisted  or  lowered,  must 
be  securely  lashed  at  the  upper  end  to  the  cable. 
Miners  must  know  they  will  ride  up  or  down  the  shaft 
without  catching  on  rocks  or  timbers  and  be  thrown 
out. 

Rule  5 — The  foreman  will  see  that  one  printed  sheet 
of  these  signals  and  rules  for  each  level  and  one  for 
the  engine-room  are  attached  to  a  board  not  less  than 
twelve  inches  wide  by  thirty-six  inches  long,  and 
•securely  fasten  the  board  up  where  signals  can  be 
easily  read  at  the  places  above  stated. 

Rule  6 — The  above  signals  and  rules  must  be  obeyed. 
Any  violation  will  be  sufficient  grounds  for  discharging 
the  party  or  parties  so  doing.  No  person,  company, 
corporation,  or  individuals  operating  any  mine  within 
the  State  of  California,  shall  be  responsible  for  acci- 
dents that  may  happen  to  men  disobeying  the  above 
rules  and  signals.  Said  notice  and  rules  shall  be 
signed  by  the  person  or  superintendent  having  charge 
of  the  mine,  who  shall  designate  the  name  of  the  cor-" 
poration  or  owner  of  the  mine. 

§  3.  Any  person  or  company  failing  to  carry  out  any 
of  the  provisions  of  this  act  shall  be  responsible  for 
all  damages  arising  to  or  incurred  by  any  person 
working  in  said  mine  during  the  time  of  such  failure. 

§  4.  This  act  shall  take  effect  immediately.  Cal. 
Stats.,  1893,  p.  82. 

8.  Ariz.  Stats.  1907,  p.  118;  Cal.  Stats.  1909,  p.  279;  Mont.  Rev. 
Codes,  §1731;  Nev.  Stats.  1903,  p.  33;  1909,  p.  73;  Ore- 
gon Stats.  1907,  p.  311;  Utah  Stats.  1896,  p.  219;  Wyo. 
Stats.  1909,  p.  21. 

The  law  of  California  limiting  the  hours  of  labor  is 
as  follows:  §  1.  That  the  period  of  employment  for  all 
persons  who  are  employed  or  engaged  in  work  in 
•  underground  mines  in  search  of  minerals,  whether 
base  ,or  precious,  or  who  are  engaged  in  such  under- 
ground mines  for  other  purposes,  or  who  are  em- 
ployed or  engaged  in  other  underground  workings 
whether  for  the  purpose  of  tunneling,  making  exca- 
vations or  to  accomplish  any  other  purpose  or  design, 
or  who  are  employed  in  smelters  and  other  institutions 
for  the  reduction  or  refining  of  ores  or  metals,  shall 
not  exceed  eight  hours  within  any  twenty-four  hours, 
and  the  hours  of  employment  in  such  employment  or 
work  day  shall  be  consecutive,  excluding,  however, 
any  intermission  of  time  for  lunch  or  meals;  provided 
that,  in  the  case  of  emergency  where  life  or  property 
is  in  imminent  danger,  the  period  may  be  a  longer 
time  during  the  continuance  of  the  exigency  or  emer- 
gency. 

§  2.  Any  person  who  shall  violate  any  provision  of 
this  act,  and  any  person  who  as  foreman,  manager, 


§  81]  PARTITION.  119 

director  or  officers  of  a  corporation,  or  as  the  employer 
or  superior  officer  of  any  person,  shall  command,  per- 
suade or  allow  any  person  to  violate  any  provision  of 
this  act,  shall  be  guilty  of  a  misdemeanor  and  upon 
conviction  shall  be  punished  by  a  fine  of  not  less  than 
fifty  dollars  ($50.00)  nor  more  than  three  hundred  dol- 
lars ($300.00),  or  by  imprisonment  of  not  more  than 
three  months.  And  the  court  shall  have  discretion  to 
impose  both  fine  and  imprisonment  as  herein  provided. 
§  3.  All  acts  and  parts  of  acts  inconsistent  with  this 
act  are  hereby  repealed.  Cal.  Stats.,  1909,  p.  279. 
9.  Ex  parte  Martin,  157  Cal.  51,  59,  60;  citing  Holden  v.  Hardy, 
169  U.  S.  366;  Ex  parte  Boyce,  27  Nev.  299;  Ex  parte 
Kair,  28  Nev.  127;  but  see  In  re  Morgan,  26  Colo.  415. 

§  80a.  Recent  California!!  Legislation.  Recent 
Calif  ornian  legislation  in  relation  to  the  subject  of 
this  title  is  "An  Act  relating  to  the  liability  of  em- 
ployers for  injuries  or  death  sustained  by  their  em- 
ployees, providing  for  compensation  for  the  accidental 
injury  of  employees,  establishing  an  industrial  acci- 
dent board,  defining  its  powers  and  providing  for  a 
review  of  its  awards."  Approved  April  8,  1911. x 

1.  Cal.  Stats.  1911,  p.  796. 

§  81.  Partition.  Mining  claims  are  subject  to 
partition,1  although  the  paramount  title  thereto  may 
be  in  the  United  States.2  A  suit  therefor  usually  re- 
sults in  a  decree  for  the  sale  of  the  property.3 

2.  AGREED  PARTITION.    A  mining  claim  may  be  par- 
titioned by  agreement  between  the  parties.4 

3.  ARBITRATION.    The  question  of  title  to  a  mining 
claim  is  not  a  subject  for  arbitration.5 

4.  MINING  RIGHT.    A  bare  "mining  right"  is  usu- 
fructuary in  its  character  and  is  not  in  its  nature 
capable  of  partition.6 

1.  Aspen   Co.   v.   Rucker,    28    Fed.    220;    Hughes   v.   Devlin,    23 

Cal.  501;  Brown  v.  Challis,  23  Colo.  145;  see  Manley  v. 
Boone,  159  Fed.  633;  Smith  v.  Jones,  21  Utah,  270. 

2.  Aspen  Co.  v.  Rucker,  ante. 

3.  Royston  v.  Miller,  76  Fed.  50;  Brown  v.  Challis,  ante;  see 

Mitchell  v.  Cline,  84  Cal.  409;  Dall  v.  Confidence  Co.,  3 
Nev.  531;  see  Ryan  v.  Egan,  26  Utah  241.  Mining  prop- 
erty from  its  very  nature  is  not  susceptible  of  partition. 
The  ores  are  unevenly  distributed,  while  the  values  are 
purely  conjectural  until  tested  by  extended  develop- 


120  REMEDIES.  [Ch.  13 

ment  and  careful  tests,  which  can  only  be  obtained  as 
the  result  of  a  vast  expenditure  of  money  and  time;  so 
that  it  is  known  in  advance  of  bringing  the  suit  for 
partition  that  the  only  feasible  relief  that  can  be 
awarded  is  a  decree  for  the  sale  of  the  property. 
Brown  v.  Challis,  ante;  see  Hall  v.  Vernon,  47  W.  Va. 
295. 

4.  420  Co.  v.   Bullion  Co.,   9  Fed.  Cas.   4989;  see  Tonopah  Co. 

v.  Tonopah  Co.,  125  Fed.  400;  see  Empire  State  Co.  v. 
Bunker  Hill  Co.,  131  Fed.  591;  Mullins  v.  Butte  Co.,  25 
Mont.  525. 

5.  Spencer  v.  Winselman,  42  Cal.  479. 

6.  Smith  v.  Cooley,  65  Cal.  46;  see  §103,  post. 

§  82.  Patent.  A  patent  may  be  cancelled  by  a 
direct  proceeding  in  equity  when  issued  by  the  Land 
Department  through  an  error  of  law  or  when  the  pat- 
ent is  obtained  in  fraud  of  the  rights  of  the  Govern- 
ment,1 provided,  that  suit  is  brought  within  6  years 
from  the  date  of  its  issuance.2 

2.  BONA  FIDE  PURCHASER.    A  sale  to  a  bona  fide 
purchaser;  for  value,  without  notice,  will  bar  an  action 
against  a  patentee  or  his  transferee.3 

3.  BURDEN  OF  PROOF.    The  burden  of  proof  is  on 
the  attacking  party.4 

4.  FRAUDULENT  PATENTEE.     A  person  wrongfully 
or  fraudulently  obtaining  a  patent  for  land  which 
properly  belongs    to    another,  or    whether  acting  in 
good  faith,  will  be  treated  in  equity  as  trustee  for  the 
equitable  owner  and  be  required  to  transfer  the  legal 
title  to  him.5 

5.  NOT  ATTACK  UPON  PATENT.    This  proceeding  is 
not  an  annulment  or  setting  aside  of  the  patent  wrong- 
fully issued,6  but  is  based  upon  the  theory  that  the  title 
evidenced  by  the  patent  inured  to  the  benefit  of  such 
trustor.7 

6.  STATUS  OP  TRUSTOR.    Where  it  is  sought  to  have 
the  patentee  declared  the  trustee    for    another,    not 
named  in  the  patent,  the  plaintiff,  in  such  a  suit,  in 
the  absence  of  any  contract  between  the  parties,  must 
allege  and  clearly  prove  tl^at  he  occupies  such  a  status 
as  to  entitle  him  to  control  the  legal  title.8 


§82]  PATENT.  121 

7.  FRAUD.    If  charges  of  fraud  are  made  they  must 
be  specific  and  show  that  the  fraud  must,  necessarily, 
have  affected  the  action  of  the  land  department  in 
issuing  the  patent.9 

8.  APPLICATION  TO  SUE.    If  a  party  is  not  entitled 
to  control  the  legal  title  yet  seeks  to  annul  the  patent 
or  limit  its  operation  he  must  make  application  to  the 
Government  to  take  the  proper  steps  to  that  end,  as 
such  a  suit  can  be  maintained  only  by  and  in  the  name 
of  the  United  States.10 

9.  FALSE    TESTIMONY   INSUFFICIENT.     False  testi- 
mony or  forged  documents  will  not  defeat  the  patent 
if  the  disputed  matter  has  actually  been  presented  to 
or  considered  by  the  appropriate  tribunal.11     To  be 
considered,  the  perjury  must  be  extrinsic  or  collateral 
to  the  matter  determined.12 

See  §  206,  post. 

1.  King  v.  McAndrews,  111  Fed.  860;  Hiram  M.  Hamilton,  38 

L.  D.  597. 

2.  26  Stats.  1093;  see  Peabody  v.  Gold  Hill  Co.,  106  Fed.  241; 

U.  S.  v.  Chandler-Dunbar  Co.,  209  U.  S.  447.  The  object 
of  this  statute  is  to  extinguish  any  right  the  govern- 
ment may  have  in  the  land  and  vest  a  perfect  title  in 
the  adverse  holder  after  6  years  from  date  of  patent 
regardless  of  any  mistake  or  error  in  the  land  depart- 
ment or  the  fraud  or  imposition  of  the  patentee.  U.  S. 
v.  Smith,  181  Fed.  545. 

3.  Hawley  v.   Diller,   178   U.   S.    476;    U.   S.  v.   Scholl,    45  Fed. 

758;  U.  S.  v.  Detroit  Co.,  131  Fed.  668;  U.  S.  v.  Clark, 
138  Fed.  294;  Schultz  v.  McLean,  93  Cal.  329;  see  20 
Stats.  89;  U.  S.  v.  Winona'  Co.,  165  U.  S.  463;  see  U.  S. 
v.  Smith,  ante. 

4.  Colorado  Coal  Co.  v.  U.  S.,  123  U.  S.  307;  U.  S.  v.  Iron  Co., 

128   U.   S.   673. 

5.  Silver  v.  Ladd,  74  U.  S'.   219;  Johnson  V.  Towsley,  80  U.  S. 

72;  Craig  v.  Leitendorfer,  123  U.  S.  189;  Sanford  v. 
Sanford,  139  U.  S.  642;  Monroe  Cattle  Co.  v.  Becker,  147 
U.  S.  47;  Emblen  Co.,  161  U.  S.  52;  Emblen  Co.  v. 
Lincoln  Co.,  184  U.  S.  660;  Greenameyer  v.  Coate,  212 
U.  S.  434;  Lakin  v.  Sierra  Buttes  Co.,  25  Fed.  337;  Hunt 
v.  Patchin,  35  Fed.  816;  Suessenback  v.  Bank,  5  Dak. 
477;  Rose  v.  Richmond  Co.,  17  Nev.  25;  see  Hartman  v. 
Warren,  76  Fed.  157;  Delmoe  v.  Long,  35  Mont.  139; 
So.  End  Co.  v.  Tinney,  22  Nev.  19;  Oregon  Co.  v.  Hertz- 
berg.  26  Or.  216. 

6.  Silver  v.  Ladd,  ante;  So.  End  Co.  v.  Tinney,  ante. 


122  REMEDIES.  [Ch.  13 

7.  Silver  v.  Ladd,  ante;    Nowell  v.  McBride,  162  Fed.  432. 

8.  James  v.  Germania  Co.,  107  Fed.  597;  Plummer  v.  Brown, 

70  Cal.  544;  Dreyfus  v.  Badger,  108  Cal.  58;  Pierce  v. 
Sparks,  4  Dak.  3,  affd.  in  115  U.  S.  408;  Neilson  v. 
Champagne  Co.,  119  Fed.  123;  see  Lee  v.  Johnson,  116 
U.  S.  48;  Loney  v.  Scott.  (Or.)  112  Pac.  172. 

9.  Vance  v.  Burbank,   101  U.   S.   514.     Where  it  is  sought  to 

attack  a  patent  upon  the  ground  of  fraud  or  gross 
mistake  which  caused  a  misapprehension  by  the  land 
department  of  the  facts  proved  before  it  and  thereby 
caused  the  wrongful  issuance  of  the  patent,  it  must  be 
alleged  and  proved  not  only  that  there  was  a  mistake 
in  the  findings  but  the  evidence  before  the  department 
from  which  the  mistake  resulted,  the  particular  mis- 
take that  was  made,  the  way  in  which  it  occurred  and 
the  fraud,  if  any,  which  induced  it,  before  any  court 
.  can  enter  into  the  consideration  of  any  issue  of  fact 
determined  by  the  officers  of  the  department  at  the 
hearing.  James  v.  Germania  Co.,  ante;  Semple  v. 
Hagar,  27  Cal.  163. 

10.  Lee  v.   Johnson,   ante;   Carter  v.   Thompson,    65   Fed.   329; 

Jameson  v.  James,  155  Cal.  275;  Poire  v.  Wells,  6  Colo. 
406;  see  Doolan  v.  Carr,  125  U.  S.  618;  S'o.  End  Co.  v. 
Tinriey,  ante. 

11.  Greenameyer  v.   Coate,   ante;   U.   S.  v.   Reed,   28   Fed.   482; 

Peabody  Co,  v.  Gold  Hill  Co.,  ante;  Jameson  v.  James, 
ante;  Cragie  v.  Roberts,  6  Cal.  A.  309;  see  U.  S.  v. 
Smith,  ante. 

12.  U.   S.  v.  White,   17  Fed.   561;  U.   S.  v.  Minor,   26  Fed.   672; 

Cragie  v.  Roberts,  ante.  A  concealment  of  facts  is  not 
sufficient  basis  for  an  attack  upon  a  patent.  U.  S.  v. 
Atherton,  102  U.  S.  272;  U.  S'.  v.  McGraw,  12  Fed.  449; 
Kerns  v.  Lee,  142  Fed.  985;  Semple  v.  Hagar,  ante. 
For  instances  of  extrinsic  or  collateral  fraud  see 
Cragie  v.  Roberts,  ante. 

§  83.  Rescission.  A  rescission  can  be  effected 
only  by  placing  or  offering  to  place  the  party  against 
whom  the  rescission  is  sought  in  the  position  in  which 
he  stood  in  relation  to  the  property  at  the  time  the 
contract  or  option  was  entered  into,  unless  the  prop- 
erty is  of  no  value.1 

2.  CONDITION  PRECEDENT.    Restoration  is  a  condi- 
tion  precedent   to    suit   for   rescission;     it   must   be 
promptly  made  and  suit  be  brought  within  a  reason- 
able time  thereafter.2 

3.  APPLICATION  OF  RULE.     This  rule  applies  with 
peculiar  force  in  relation  to  mining  property  because 
of  its  fluctuating  and  speculative  character.3 


§  83]  RESCISSION.  123 

4.  GROUNDS  FOR  RESCISSION.     The  "salting"  of  a 
mining  claim  which  is  the  subject  of  a  contract  or 
option,  or  an  error  as  to  the  amount  of  "ore  in  sight" 
therein,  are  sufficient  grounds  for  rescission.4 

5.  SALTING.    "Salting"  consists  in  placing,  usually 
surreptitiously,    valuable    mineral    from    a    foreign 
source  in  such  form  and  place  within  the  claim  as  the 
characteristics  of  the  latter  may  require,  or,  in  like 
manner,  tampering  with  the  samples  of  ore, or  mineral 
taken  therefrom  or  with  the  assays  thereof,  or  the 
amalgam  or  other  matter  in  the  mill  or  other  reduc- 
tion works,  with  the  intent  and  for  the  purpose  to 
thereby  give  increased  apparent,  but  misleading  and 
inflated  value  to  the  property  which  is  the  subject  of 
the  option  or  contract  of  sale  thereof  and,  so,  induce 
its  sale  at  a  price  greater  than  its  mineral  value  war- 
rants. 

6.  UNINTENTIONAL  SALTING.    A  faulty  method  of 
prospecting  or  of  sampling  may  result  in  a  party 
"salting   himself/'      This,    for   instance,   may   be   by 
"driving"  after  drilling  in  an  auriferous  free  gravel 
deposit. 

7.  REMEDIES.     In  the  event  of  a  sale  of  a  salted 
property  the  party  who  has  been  thus  defrauded  may 
keep  the  property  and  sue  for  damages,  or  repudiate 
the  contract,  restore  the  property  and  demand  the 
return  of  his  money,  provided,  that  he  acts  within  a 
reasonable  time  after  discovery  of  the  fraud.5 

8.  INSUFFICIENT   GROUNDS  FOR  RESCISSION.     The 
following   are   instances   of   insufficient   grounds   for 
rescission,  viz :    Where  the  purchaser  is  to  find  out  for 
himself  whether  the  claim  is  valuable  or  not  ;G  conceal- 
ment of  the  mineral  value  of  the  land  7  or  the  output  of 
adjoining  property,  provided,  there  be  no  wilful  mis- 
statement  of  a  material  fact  intended  to  mislead  the 
seller  as  to  the  value  of  the  land.8 


1-24  REMEDIES.  [Ch.  13 

9.  MARKETABLE  TITLE.  The  want  of  a  marketable 
title  prior  to  the  expiration  of  the  time  to  purchase  the 
property  9  or  mere  reliance  upon  rumors  of  a  defect 
in  the  title10  are  insufficient. 

1.  Harrington  v.  Paterson,  124  Cal.  542;  Kelley  v.  Owens,  120 

Cal.  502 

2.  So.  Nev.  Dev.  Co.  v.  Silva,  125  U.  S.  247;  Bishop  v.  Thomp- 

son,  196  111.  206;   Pettus  v.  .Roberts,   G  Ala.   811. 

3.  Twin    Lick    Co.    v.    Marbury,    91    U.    S.    587;    Johnston    v. 

Standard   Co.,    148    U.    S.   360;    Patterson   v.   Hewitt,    195 
U    S    309 

"4.  See    Mudsill    Co.    v.    Watrous,    61    Fed.    163;    Johnson    v. 
Withers,   9  Cal.  A.   52. 

5.  Wheeler  v.  Dunn,  13  Colo.  428. 

6.  Winter  v.  Bostwick,  172  Fed.  285;  see  So.  Nev.  Dev.  Co.  v. 

Silva,  ante;    Crocker  v.  Manley,  164  111.  282. 

7.  Caples  v.  Steel,  7  Or.  491. 

8.  Harris   v.   Tyson,    24    Pa.    St.    347;    Neill   v.   Shamburg,    158 

Pa.   St.   263. 

9.  Winter   v.    Bostwick.    ante;    Wiley    v.    Helen,    (Kan.)    112 

Pac.  158. 
10.  Moore  v.  Pooley,  17  Ida.  57. 

§  84.  Statute  of  Limitations.  Under  the  pro- 
visions of  the  mining  act  in  regard  to  State  or  Terri- 
torial statute  of  limitations,  the  latter  statute  becomes 
the  foundation  upon  which  actively  to  assert  a  right, 
and  is  not  limited  as  in  other  cases,  to  be  used  as  a 
defense  against  an  adversary's  attack. 

2.  ESTABLISHES  BIGHT  TO  PATENT.    Where  claims 
have  been  held,  and  worked  for  a  period  equal  to  the 
term  prescribed  by  the  statute  of  limitations  for  min- 
ing claims  for  the  state  or  territory  where  the  same  is 
situated,  evidence  of  such  possession  and  working  is 
sufficient  to  establish  a  right  to  a  patent  thereto  in  the 
absence  of  any  adverse  claim,1  provided,  the  statutory 
expenditure  has  been  made  thereon.2 

3.  CONTROLLING   FACTOR.     The  statute  of   limita- 
tions thus  becomes  a  controlling  factor  as  the  basis  of 
a  claimant's  right  to  a  mining  claim  in  contradistinc- 
tion from  its  ordinary  use  as  a  shield  for  defense 
against  an  adverse  attack.3 

4.  CALIFORNIAN    PROVISIONS.      In    California    the 
time  for  commencing  an  action  for  the  recovery  of  real 


§  85]  TRESPASS.  125 

property  is  limited  to  five  years  after  the  plaintiff  or 
his  ancestor,  predecessor  or  grantor  was  seized  or  pos- 
sessed of  the  property  in  question ;  4  the  time  for  com- 
mencing an  action  for  trespass  upon  real  property  is 
limited  to  three  years  5  and  the  time  for  commencing 
an  action  for  relief  on  the  ground  of  fraud  is  limited 
to  three  years  after  the  discovery  of  the  facts  con- 
stituting the  fraud  or  mistake.6 

See  §  82,  note  2. 

1.  Rev.    Stats.,    §2332;    Glacier    Co.    v.    Willis,    127    U.    S.    471; 

Harris  v.  Equator  Co.,  8  Fed.  8.63;  Altoona  Co.  v.  In- 
tegral Co.,  114  Cal.  100;  Cleary  v.  Skiffich,  28  Colo.  362; 
420  Co.  v.  Bullion  Co.,  9  Nev.  240;  see  §  169,  post. 

2.  Capital  No.  5  Claim,  35  L.  D.  551. 

3.  See  Min.  Reg.,  pars.   74-75. 

4.  C.  C.  P.  §  318. 

5.  C.  C.  P.  §338-2. 

6.  C.  C.  P.  §  338-4. 


§  85.  Trespass.  In  cases  of  trespass  upon  a  min- 
ing, timber,  or  like  claim  an  injunction  will  be  granted 
to  restrain  the  commission  of  acts  by  which  the  sub- 
stance of  the  estate  is  injured,  destroyed  or  carried 
away.1 

2.  IGNORANCE  OF  BOUNDARY.     The   fact   that   the 
trespass  is  due  to  ignorance  of  the  dividing  line  be- 
tween two  claims  is  no  excuse  or  justification  2  as  one 
is  bound  to  know  the  boundaries  of  his  own  property 
and  to  refrain  from  injuring  the  property  of  others.3 

3.  TEST  OF  TRESPASS.     A  trespass  may  be  due  to 
mistake  4  or  be  intentional.5     The  test  which  deter- 
mines whether  one  was  a  wilful  or  an  innocent  tres- 
passer is  not  his  violation  of  or  compliance  with  the 
law,  but  his  honest  belief  at  the  time  he  committed  the 
injury.6 

4.  INJUNCTIONAL  PROCEEDINGS.  The  courts  are  more 
liberal   in  granting  a  writ  of  injunction  in  mining 
cases  than  in  those  affecting  other  real  estate,7  be- 
cause of  the  necessity  of  preventing  injury  which  can 
not  be  accurately  estimated  and  therefore  cannot  be 


126  REMEDIES.  [Ch.  13 

adequately  compensated,  or  in  order  that  neither 
party  may  get  the  advantage  of  the  other  during  the 
litigation  by  force  or  violence.8  The  doubt  should  be 
resolved  in  favor  of  granting  the  writ.9 

5.  DENIAL*  OF  INJUNCTION.    In  an  action  of  eject- 
ment the  defendant  cannot  be  restrained  from  enter- 
ing upon  or  from  "working"  the  property  in  dispute, 
provided,  he  does  not  commit  waste  or  extract  or  re- 
move ore  therefrom.10     Co-tenants  in  possession  will 
not  be  enjoined  from  working  a  mining  claim  in  the 
ordinary  way.11 

6.  EIGHT  OF  INSPECTION.    Incident  to  an  action  in 
trespass  is  the  right,  by  one  having  a  real  interest 
therein,  to  inspect,  examine  and  survey  the  property 
involved  in  the  action. lla 

7.  GROUNDS  FOR  ORDER.    From  the  very  nature  of 
the  case  the  ignorance  of  the  party  invoking  the  aid  of 
the  court  and  the  want  of  the  means  to  acquire  the  in- 
formation necessary  to  make  out  his  case  are  of  the 
greatest  import;  if  these  facts  appear,  and  the  cir- 
cumstances otherwise  appearing  to  the  court  in  the 
evidence  furnish  reasonable  ground  for  the  belief  that 
an  inspection  will  aid  the  court  in  the  investigation 
of  the  case  the  prder  should  be  granted.12 

8.  SUBSTANCE  OF  ORDER.     The  order  for  the  ex- 
amination, inspection  and  survey  of  the  defendant's 
claim   should   strictly   limit  the   examination  to  the 
workings  of  which  it  is  necessary  for  the  moving  party 
to  have  knowledge  and  to  the  making  of  surveys  and 
maps  thereof.13 

9.  DAMAGES.    The  ultimate  recovery  against  a  tres- 
passer, must  be  determined  largely  upon  the  question 
of  the  good  or  bad  faith  of  the  undertaking.14    Where 
the  trespass  is  wilful  the  measure  of  damages  is  the 
enhanced  value  of  the  mineral  at  the  mouth  of  the 
shaft,  or  where  it  was  finally  converted  to  the  use  of 
the  defendant.15    If  an  innocent  trespass  the  measure 


§  85]  TRESPASS.  127 

of  damages  is  the  value  of  the  mineral  as  it  was  in  the 
ground  before  its  disturbance.16 

10.  GOOD  FAITH  OF  TRESPASSER.    Good  faith  is  not 
necessarily  dependent  upon  ignorance  of  an  adverse 
claim ; 17  but  an  intentional  or  reckless  omission  to  as- 
certain the  rights  or  the  boundaries  of  land  of  the 
victim  for  the  purpose  of  maintaining  ignorance  re- 
garding them,  or  the  reckless  disregard  of  them,  is  as 
fatal  to  the  claim  of  a  trespasser  to  limit  the  recovery 
of  damages  against  him  to  the  lower  measure  as  is  an 
intentional  or  wilful  trespass  or  taking.18 

11.  PLEADING.     Where  the  damage  is  irreparable, 
the  insolvency  of  the  defendant  need  not  be  pleaded, 
as  it  is  the  nature  of  the  injury  and  not  the  incapacity 
of  the  party  to  respond  in  damages  which  determines 
the  right  to   an   injunction  in  cases  of  trespass  or 
waste.19 

12.  MODEL.    A  model  of  a  mine  may  not  be  admis- 
sible in  evidence  because  not  a  perfect  mechanical  fac 
simile  thereof,  but  it  may  be  admitted  in  connection 
with  and  for  the  purpose  of  exp]aining  the  testimony 
of  witnesses.20 

1.  Allen  v.  Dunlap,  24  Or.  229;  see  Waskey  v.  M'Naught,  163 

Fed.  929;  Haggin  v.  Kelly,  136  Cal.  481. 

2.  Maye  v.  Yappen,  23  Cal.  306;  see  Resurrection  Co.  v.  For- 

tune Co.,  129  Fed.  668. 

3.  Durant  Co.   v.   Percy   Co.,    93   Fed.    166;   Cent.   Coal   Co.   v. 

Penny,   173   Fed.   340. 

4.  Donovan  v.  St.  Louis  Co.,  187  111.  28. 

5.  Resurrection  Co.  v.  Fortune  "Co.,  ante. 

6.  U.  S.  v.  Homestake  Co.,  117  Fed.  481. 

7.  Mabel  v.   Pearson,   121  Ala.   567;   Safford  v.  Flemming,   13 

Ida.  271.  As  a  general  rule  the  writ  should  contain  a 
concise  description  of  the  particular  acts  or  things  in 
respect  to  which  the  party  is  enjoined,  so  that  there 
may  be  no  misapprehension  on  the  subject.  Whipple  v. 
Hutchinson,  29  Fed.  Gas.  17,517;  see  Erhardt  v.  Boaro, 
113  U.  S.  527;  St.  Louis  Co.  v.  Mont.  Co.,  58  Fed.  129. 

8.  Safford   v.    Fleming,    ante;     Bullion    Beck    Co.    v.    Eureka 

Co.,  5  Utah  3. 

9.  Erhardt   v.    Boaro,    ante;   Big   6   Co.   v.   Mitchell,    138   Fed. 

279;  Hunt  v.  Steese,  75  Cal.  620. 

10.  Williams  v.  Long,  129  Cal.  229;  see  Safford  v.  Flemming, 
ante.  The  writ  will  be  refused  to  enjoin  the  defendant 
from  working  upon  or  extracting  any  ore  from  any 
vein  having  its  top  or  apex  in  plaintiff's  ground.  This 


128  REMEDIES.  [Ch.  13 

would  call  upon  the  defendant  to  ascertain  what  veins 
have  their  apex  in  plaintiff's  ground  and  the  extent 
of  such  apex  therein.  St.  Louis  Co.  v.  Mont.  Co.,  ante. 

11.  McCord    v.    Oakland    Co.,     64    Cal.    134;    see    Downing    v. 

Rademacher,  133  Cal.  220;  Butte  &  Boston  Co.  v.  Mont. 
Ore  Co.,  25  Mont.  41.     See  §  39,  ante, 
lla.  Bacon  v.  Federal  Co.  (Ida.),  112  Pac.  1055. 

12.  State  v.  District  Court,  26  Mont.  412,  416;  29  Mont.  105.    It 

is  now  the  recognized  practice  to  direct  the  survey  on 
the  application  of  the  party  out  of  possession  of  the 
excavations.  Without  this  course  it  is  within  the  power 
of  the  party  in  possession  to  conceal  from  the  party 
out  of  possession  the  direction  of  the  excavation,  to 
determine  whether  or  not  it  is  beneath  the  surface 
survey,  and  to  ascertain  the  quantity  of  mineral  ex- 
tracted. Penny  v.  Cent.  Coal  Co.,  138  Fed.  769. 

13.  State  v.  District  Court.  30  Mont.  206;  see  Smuggler  Co.  v. 

Kent,    (Colo.)    112   Pac.    223. 

14.  Backer  v.    Penn   Lub.   Co.,   162   Fed.    627.      That   for   every 

"    trespass  upon  real  property  the  law  presumes  nominal 
damages;  see  Empire  Co.  v.  Bonanza  Co.,  67  Cal.  406. 

15.  Cent.  Coal  Co.  v.  Penny,  ante;  see  Benson  Co.  v.  Alta  Co., 

145  U.  S.  428.  The  presumption  is  that  the  defendant 
has  the  means  to  show  the  actual  value  -of  the  ore 
removed.  Mont.  Co.  v.  St.  Louis  Co.,  183  Fed.  51. 

16.  Id. 

17.  Backer  v.  Penn  Lub.  Co.,  ante. 

18.  Cent.  Coal  Co.  v.  Penny,  ante. 

19.  U.  S.  v.  Guglard,  79  Fed.   21;  Waskey  v.  M'Naught,   ante; 

Halla  v.  Rogers.  176  Fed.  709;  Merced  Co.  v.  Fremont, 
7  Cal.  317;  Kellogg  v.  King,  114  Cal.  378;  Haggin  v. 
Kelly,  ante;  Ganse  v.  Perkins,  3  Jones  Eq.  (N.  Car.) 
177;  Kerlin  v.  West.  4  N.  J.  Eq.  449;  Sierra  Nev.  Co.  v. 
Sears,  10  Nev.  346:  Sullivan  v.  Dooley,  31  Tex.  Civ.  App. 
589.  A  trespass  is  irreparable  when  from  its  nature 
it  is  impossible  to  make  full  and  complete  reparation 
in  damages.  Justice  Co.  v.  Plank  Co.,  11  Ga.  246.  The 
unlawful  extraction  of  oil  or  gas  is  an  act  of  irrepar- 
able injury.  Bettman  v.  Harness.  42  W.  Va.  433.  Ina- 
bility to  correctly  estimate  the  damage  after  the  evi- 
dence obtainable  has  been  produced  makes  a  case  of 
irreparable  damage  but  difficulty  in  collecting  evidence 
as  to  damage  would  not.  Gray  Lumber  Co.  v.  Gaskin. 
122  Ga.  342. 

20.  Illinois  Co.  v.  Raff,  7  N.  M.  336. 


CHAPTER  XIV. 

DEFINITIONS. 

(For  other  definitions  see  appropriate  titles.) 
§    87.  Assays — assay    value — value    of    assay — car    and-   mill 

samples. 

§    88.  Blanket  sluices — concentrates. 

§    89.  Claim — application  of  term — perfected  claim — contigu- 
ous claims. 

90.  Conspicuous  place — penalty. 
§    91.  Coiporation — location  rights. 


§  87]  ASSAYS  129 

§    92.  Desert  lands. 

§  93.  Entry — preferential  right — certificate  of  entry — issu- 
ance— effect  of  issuance — cancellation — repayment. 

I    94.  Exemptions— Calif ornian  provision. 

I  95.  Fixtures — examples — Californian  provision — character 
of  title  immaterial. 

9  9«.  Location — location  and  mining  claim — consolidated  loca- 
tions—  technical  locations  —  illustrations — location  as 
property  —  incidents  of  ownership  —  not  community 
property — taxation. 

§    97.  Markings. 

§  98.  Mine  —  existence  determined  —  synonyms  —  descriptive 
name — want  of  identity. 

§  99.  Mineral — mineral  substances — within  purview  of  min- 
ing laws — float — ore — ore  in  sight — ore  personal  prop- 
erty— placers — placer  workings — zone, 

§  100.  Miner's   inch — Californian  provision. 

§  10L  Mining — prospecting  and  mining — process  of  mining — 
process  of  milling — business  of  mining — instrumental- 
ities— superintendent — shift  boss — miner. 

§  102.  Mining  claim — statutory  meaning — distinction  between 
mining  claim  and  location — distinction  between  mining 
claim  and  mining  ground — navigable  river — Mexican 
grant  —  agricultural  patent  —  oil  claim  —  ditch  —  un- 
worked  placer. 

§  103.  Mining  right — species  of  trade — legal  relations — min- 
ing title. 

i  104.  Public  land — distinction  between  public  land  and  public 
use — unoccupied  and  unappropriated  land — vacant 
land— occupancy  and  improvements — public  mineral 
land — homesteads — possession. 

§  105.  Salt  Hck. 

§!•€.  Scrip — written  authorization  —  selection  —  sale — guar- 
antee. 

§107.  Tunnel  right — implied  rights. 

§  87.  Assays.  An  assay  is  a  means  of  ascertain- 
ing the  commercial  value  of  a  mineralized  substance, 
as.  for  example,  ore  or  black  sand,  or  the  product  of  a 
mill  or  smelter,  either  by  a  "fire"  or  a  "wet"  process.1 
and  termed  "Ordinary  assays,"  "Commercial  assays," 
"Specimen  assays,"  "Control  assays,"  and  'TTmpire 

__  99 

assays. 

2.  ASSAY  VAUJE.     The  term  "assay  value*'  means 
the  standard  assay  value  of  gold  everywhere.2 

3.  VALUE  OF  ASSAY.    An  average  assay  value  of 
several  samples  cannot  be  taken  as  an  absolute  mathe- 
matical demonstration  of  the  value  of  an  ore  body,3 
nor  is  the  assay  return  necessarily  conclusive  of  the 
value  of  the  thing  assayed.4 


130  DEFINITIONS.  [Ch.  14 

4.  CAR  AND  MILL  SAMPLES.  As  car  samples  always 
run  above  the  true  value  of  the  ore,  mill  samples  are  a 
better  test  thereof.5 

1.  Puget  Co.,  96  Fed.  90. 

2.  Vietti   v.   Nesbitt,    22   Nev.    390.      A   judgment   for   the   con- 

version of  silver  bullion,  payable  in  coin,  should  be 
based  upon  the  coin  or  market  value  of  the  bullion, 
and  not  upon  an  arbitrary  standard  of  value  above  its 
market  value.  Fox  v.  Hale  &  Norcross  Co.,  108  Cal. 
369. 

3.  Golden  Reward  Co.  v.  Buxton  Co.,   97  Fed.   413;   Pittsburg 

Co.  v.  Glick,  7  Colo.  A.  43.  An  assay  may  tend  to  prove 
discovery.  Healey  v.  Rupp,  28  Colo.  102.  . 

4.  Phipps  v.  Hully,   18  Nev.  133;  see  Mudsill  Co.  v.  Watrous, 

61  Fed.  163;  Ormund  v.  Granite  Mt.  Co.,  11  Mont.  303; 
see  also  Cheesman  v.  Shreve,  40  Fed.  787. 

5.  "Fox  v.  Hale  &  Norcross  Co.,  ante;  Vietti  v.  Nesbitt.  ante. 

§  88.  Blanket  Sluices.  A  blanket  sluice  consists 
of  a  double  line  of  flat,  wooden  troughs,  set  at  a  proper 
grade  or  inclination,  and  lined  with  blankets  over 
which  the  mill  tailings  are  to  flow,  with  the  result  that 
there  is  deposited  upon  the  blankets  a  portion  of  the 
quicksilver  that  is  always  escaping  from  the  mill,  and 
a  portion  of  the  ore,  known  as  "sulphurets"  which  is 
heavier  and  richer  than  the  rest  of  the  tailings,  but 
resists  amalgamation. 

2.  CONCENTRATES.  The  material  so  caught  in  the 
blanket  sluice  is  called  "concentrates."1 

1.  Fox  v.  Hale  &  Norcross  Co.,  108  Cal.  369. 

§89.  Claim.  The  word  "claim"  in  mining  par- 
lance when  used  as  a  noun  has  a  definite  meaning, 
denoting,  when  coupled  with  the  name  of  a  miner,  a 
particular  piece  of  ground  to  which  he  has  a  recog- 
nized, vested  and  exclusive  right  of  possession  for  the 
purpose  of  extracting  precious  metals  and  minerals 
therefrom.1 

2.  APPLICATION  OF  TERM.     The  term  "claim"  is 
applied  indifferently  to  both  lode  and  placer  claims.2 

3.  PERFECTED  CLAIM.     As  used  in  the  mining  act 
the  term  means  a  claim  not  yet  perfected  by  patent.3 


§91]  CORPORATION.  131 

4.  CONTIGUOUS  CLAIMS.  The  term  "contiguous" 
means  touching  sides,  adjoining,  adjacent.  Two  tracts 
of  land  touching  only  at  a  point,  are  not  contiguous.4 

1.  N.  P.  R.  Co.  v.  Sanders,  49  Fed.  129. 

2.  Sweet  v.  Webber,   7   Colo.   443. 

3.  Iron  Co.  v.  Campbell,  135  U.  S.  286. 

A  mining  claim,  until  a  patent  therefor  has  been 
issued,  is  held  by  peculiar  title, — a  title  which  is  never 
complete  and  absolute,  and  which  can  only  be  main- 
tained by  the  annual  expenditure  thereon  by  law  re- 
quired. Bay  State  Co.  v.  Brown.  21  Fed.  167. 

4.  Hidden  Treasure,  35  L.  D.  485.     Cited  in  Anvil  Co.  v.  Code, 

182  Fed.  205;  see  §194,  note  35,  post. 

§  90.  Conspicuous  Place.  A  ' '  conspicuous  place ' ' 
is  a  discovery  shaft  *  or  shaft  house  2  or  the  placing  of 
the  plat  and  notice  of  intention  to  apply  for  a  patent  in 
a  box  and  fastening  the  same  on  a  tree,  or  otherwise 
placing  such  matter  at  an  elevation  above  the  level 
of  the  ground  so  it  can  be  seen  by  those  going  over 
the  land,  or  so  that  it  might  not  be  obscured  by  the 
snow  falling  at  the  season  of  the  year  when  posted.3 

2.  PENALTY.  A  failure  to  post  such  matter  in  a 
"conspicuous "place"  will,  in  patent  proceedings,  make 
a  new  posting  necessary.4 

1.  Ferguson  v.  Hanson,   21  L.  D.  336. 

2.  Gowdy   v.   Kismet   Co.,    22    L.   D.    624;    see   Louisville    Lode 

Case,   1  L.  D.   548. 

3.  Ferguson  v.  Hanson,  ante. 

4.  Id.;  Tom  Moore  Co.  v.  Nesmith,  36  L.  D.  199. 

§  91.  Corporation.  A  corporation  is  a  legal  entity 
and  can  have  no  greater  rights  than  an  individual  in 
acquiring  public  land.1 

2.  LOCATION  BIGHTS.  A  corporation,  regardless  of 
the  number  of  its  stockholders,  may  lawfully  locate 
no  greater  area  than  is  allowable  in  the  case  of  an  in- 
dividual.2 

1.  Igo  Bridge  Ex.   Placer,   38   L.   D.   281;   see  Gird  v.   Cal.   Oil 

Co.,    60    Fed.    531;    see   also   U.    S.    v.    Trinidad   Co.,    137 
U.  S.  160. 

2.  Id.;  see  also  Nome  &  Sinook  Co.  v.  Snyder,  187  Fed.  385. 


132  DEFINITIONS.  [Ch.  14 

§  92.  Desert  Lands.  Lands  valuable  for  their 
timber  or  lands  containing  deposits  of  coal  or  other 
minerals  are  not  desert  in  character.1 

1.  See  Gary  Act,   37   L.  D.   489;   Jeremy   Co.   v.   Thompson,   20 
L.  D.  299. 

For  statutes  and  regulations  governing  entries  and 
proofs  under  the  Desert  Land  laws,  see  Circular  39 
L.  D.  253.  For  relief  of  assignees  of  entries  in  Im- 
perial Co.,  CaL,  see  39  L.  D.  277. 

§  93.  Entry.  The  term  ' c  entry ' '  as  applied  in  the 
appropriation  of  public  land  means  that  act  by  which 
an  individual  acquires  an  inceptive  right  to  a  portion 
of  the  unappropriated  soil  of  the  country.1 

The  term  is  also  applied  to  an  adverse  re-location.2 

2.  PREFERENTIAL  EIGHT.     A  preferential  right  of 
entry  is  a  privilege  to  make  the  statutory  entry  of  a 
particular  tract  in  preference  to  others.3 

3.  CERTIFICATE  OF  ENTRY.    A  certificate  of  entry 
is  equivalent  to  a  patent  issued.     When  in  fact  the 
patent  does  issue  it  relates  back  to  the  inception  of 
the  right  of  the  patentee,  and  cuts  oft'  intervening 
claimants.4 

4.  ISSUANCE.    The  certificate  of  entry  is  issued  by 
the  receiver  of  the  proper  district  land  office  to  the 
party  entitled  by  law  thereto.5 

5.  EFFECT  OF  ISSUANCE.    The  contract  of  purchase 
is  complete  when  the  certificate  of  entry  is  executed 
and  delivered.     The  land  then  ceases  to  be  a  part  of 
the  public  domain.    Patent  issues  in  due  course. 

In  the  mean  time  the  government  holds  the  naked 
legal  title  in  trust  for  the  entryman.6 

6.  CANCELLATION.    It  is  the  province  of  the  land 
department  to  investigate  the  legality  of  an  entry 
prior  to  patent  and  cancel  the  certificate  of  entry, 
in  whole  or  in  part,  so  as  to  conform  the  entry  to  the 
law.7.     If  the  cancellation  is  based  upon  a  miscon- 
struction  of  the   law   it   can   be   corrected  by   the 
courts.8 


§  94]  EXEMPTIONS.  133 

7.  REPAYMENT.  When  an  entry  is  rejected,  in 
whole  or  in  part,  and  there  is  no  fraud  nor  attempted 
fraud  in  connection  with  the  application,  the  pur- 
chase money  and  commissions  paid  to  the  Govern- 
ment will  be  refunded  by  it  to  the  applicant  or  his 
legal  representatives  upon  verified  demand  made 
through  the  local  or  general  land  office.9 

See  §  104.  post. 

1.  Sturr  v.  Beck,  133  U.  S.  541;  see  Witherspoon  v.  Duncan,  71 

U.  S.  210.  Under  the  Homestead  law  three  things  are 
needed  to  be  done  in  order  to  constitute  an  entry  on 
public  land:  First,  the  applicant  must  make  an  affi- 
davit setting  forth  the  facts  which  entitle  him  to  make 
such  entry;  second,  he  must  make  a  formal  application; 
third,  he  must  make  payment  of  the  money  required. 
When  these  three  requisites  are  complied  with,  and  the 
certificate  of  entry  is  issued  to  him,  the  entry  is  made 
— the  land  is  entered.  Hastings  Co.  v.  Whitney,  132 
U.  S.  357;  see  McLemore  v.  Express  Co.,  158  Cal.  559; 
see  §  104-7-8. 

2.  Bradford  v.  Morrison,  212  U.  S.  389. 

3.  U.   S.   v.   Forrester,   211   U.   S.  .399.     The  term   "preference" 

means  exclusive.     Chas.  S.  Morrison,  36  L.  D.  126. 

4.  Stark  v.    Starrs,    73    U.    S.    402;   Amador   Median    Co.   v.    So. 

Spring  Hill  Co.,  36  Fed.  668. 

5.  Witherspoon  v.  Duncan,  ante. 

6.  Id. 

7.  Albert  R.  Pfau,  Jr.,  39  L.  D.  359;  see,  generally,  Hiram  M. 

Hamilton,  38  L.  D.  597. 

8.  Hawley  v.  Diller,  178  U.  S.  476. 

9.  35  Stats.  48;  Repayment,  39  L.  D.  141-146;  see  §  212.  note  4; 

Frank  G.  Bell,  39  L.  D.  191;  Hulda  Rosling,  39  L.  D. 
477;  Mary  Ward,  39  L.  D.  495. 

§  94.  Exemptions.  Exemption  laws  are  grants  of 
personal  privileges  to  debtors  which  may  be  waived  by 
contract  or  surrender  or  by  neglect  to  claim  before 
sale.1 

2.  CALIFORNIAN  PROVISION.  In  California  the  fol- 
lowing property  of  a  miner  is  exempt  from  execution 
or  attachment,  viz. :  The  cabin  or  dwelling  of  a  miner, 
not  exceeding  in  value  the  sum  of  $500 ;  also  his 
sluices,  pipes,  hose,  windlass,  derrick,  cars,  pumps, 
tools,  implements,  and  appliances  necessary  for  carry- 
ing on  any  mining  operation,  not  exceeding  in  value 
the  aggregate  sum  of  $500;  and  two  horses,  mules  or 


134  DEFINITIONS.  [Ch.  14 

oxen  with  their  harness,  and  food  for  such  horses, 
mules  or  oxen  for  one  month,  when  necessary  to  be 
used  on  any  whim,  windlass,,  derrick,  car  pump,  or 
hoisting  gear;  and  also  his  mining  claim,  actually 
worked  by  him,  not  exceeding  in  value  the  sum  of 
$1,000.2 

1.  Spitley  v.   Frost,    15   Fed.    299;     see   Conde  v.    Sweeney,    12 

Cal.  A.  Dec.  647. 

2.  C.  C.  P.,  §  690,  sub.  5. 

§  95.     Fixtures.    A  fixture  is  an  article  affixed  to 
the  freehold.1 

2.  EXAMPLES.     Engines,   boilers,   hoisting    works, 
mills,  pumps,  electric  hoist  firmly  bolted  to  the  sub- 
structure upon  which  it  rests,  the  superstructure  and 
engine  house  sufficiently  affixed  to  the  soil  for  mining 
purposes,  a  gallows  frame  together  with  the  gallows, 
hoist  and  transformers  forming  integral  parts  of  one 
mechanism  are  fixtures.2 

3.  CALIFORNIAN  PROVISION.     In  California,  sluice 
boxes,  flumes,  hose,  pipes,  railway  tracks,  cars,  black- 
smith shops,  mills,  and  all  other  machinery  or  tools 
used  in  working  or  developing  a  mine,  are  deemed  to 
be  affixed  to  the  mine.3 

4.  CHARACTER  OF  TITLE  IMMATERIAL.     It  is  imma- 
terial whether  the  fixtures  be  attached  to  property 
held  by  a  possessory  or  a  fee-simple  title.4 

1.  Merritt   v.    Judd,    14    Cal.    59;   Washburn   v.    Inter   Mt.    Co. 

(Or.),  109  Pac.  382;  see  Conde  v.  Sweeney,  12  Cal.  A. 
Dec.  647.  That  a  chattel  will  remain  such  although 
attached  to  the  realty  when  it  is  the  subject  of  a  con- 
ditional sale,  see  Arnold  v.  Goldfield  Co.,  (Nev.),  109 
Pac.  718. 

2.  Arnold  v.  Goldfield  Co.,  ante.     See  Mammoth  Co.  v.  Juab 

Co.,  10  Utah  232. 

3.  C.  C.,  §  661;    Malone  v.  Big  Flat  Co.,  76  Cal.  578;    see  Ham- 

ilton v.  Delhi  Co.,  118  Cal.  148. 

4.  Merritt   v.   Judd,    ante;    Roseville   Alta   Co.   v.   Iowa   Gulch 

Co.,  15  Colo.  29. 

§96.     Location.     The  term  "location"    refers    to 
the  acts  constituting  the  appropriation  of  a  portion  of 


§  96]  LOCATION.  135 

the  public  domain  under  the  mining  law  1  not  neces- 
sarily coupled  with  discovery.2  It  includes  a  lode  or 
a  placer  claim  3  not  yet  perfected  by  patent.4 

2.  LOCATION  AND  MINING  CLAIM.    The  terms  "loca- 
tion" and  "mining  claim"  are  used  interchangeably,5 
although    a  "mining  claim"  may  consist    of    several 
locations.6 

3.  CONSOLIDATED  LOCATIONS.     It    is    common    to 
consolidate  two  or  more  locations  into  one  claim  and 
thereafter  to  treat  and  work    them    as    one    claim. 
Thereafter  they  are  in  law  and  in  fact  only  parts 
of  one  claim.7 

4.  TECHNICAL  LOCATIONS.     What  may  be  termed 
a  technical  location  is  one  made  under  the  provisions 
of  the  mining  act,  irrespective  of  the  mode  of  occur- 
rence of  the  mineral  therein. 

5.  ILLUSTRATIONS.     Cinnabar  occurs,  generally,  in 
fibrous  or  amorphous  masses  imbedded  in  shales  or 
slate  rock.    Lead  is  frequently  found  between  strata 
in  flat  cavities,  in  beds  within  sand  stones  and  rudi- 
mentary limestones— formations  which  would  not  an- 
swer to  veins  or  lodes  when  speaking  with  scientific 
accuracy,8  yet  each  of  these  formations,  to  be  included 
within  a  valid  location,  must  be  located  as  a  "lode 
claim."  9     Unmineralized  marble,  occurring    in    vein 
formation,  that  is  rock  in  place,  must  be  located  as  a 
"placer  claim,"  10  but  sand  rock,  or  sedimentary  sand- 
stone formation,  in  the  general  mass  of  the  mountain, 
bearing  mineral,  is  rock  in  place  and  must  be  located 
as  a  lode  claim.10a 

6.  LOCATION  AS  PROPERTY.     A  location  perfected 
under  the  law,  that  is,  a  valid  location,  is  property  in 
the  highest  sense  of  that  term,11  although  until  patent 
issues,  the  fee  remains  in  the  United  States.12 

7.  INCIDENTS  OF  OWNERSHIP.     It  may  be  bought, 
conveyed,13    sold   under    judicial    decree,14    leased,15 
made  a  homestead  under  a  state  law,16  mortgaged,17 


136  DEFINITIONS.  [Ch.  14 

or  pass  by  descent,18  without  in  any  manner  infring- 
ing the  title  of  the  United  States.19 

8.  NOT  COMMUNITY  PROPERTY.    While  unpatented 
it  is  not  community  property,20  nor  subject  to  the 
right  of  dower.21 

9.  TAXATION.    While  unpatented  it  is  not  subject 
to  taxation,22  but  the  possessory  right  thereto  and  the 
product  from  the  location  may  be  taxed  and  the  lien 
be  enforced  by  a  sale  of  the  right  of  possession.23 

1.  Belk  v.   Meagher,   104  U.   S.   279;    St.  Louis   Co.   v.  Kemp, 

104  U.  S.  636;  Poire  v.  Wells,  6  Colo.  406;  McKay  v. 
McDougall,  25  Mont.  258. 

2.  Uinta  Co.  v.  Ajax  Co.,  141  Fed.  563. 

3.  Sweet  v.  Webber,  7  Colo.  443. 

4.  Iron  Co.  v.  Campbell,  135  U.  S.  286. 

5.  Del  Monte  Co.  v.  Last  Chance  Co.,   171  U.  S.  55;    Clipper 

Co.  v.  Eli  Co.,  194  U.  S.  220;  Castagnetto  v.  Coppertown 
Co.,  146  Cal.  329. 

6.  St.  Louis  Co.  v.  Kemp,  ante;  Del  Monte  Co.  v.  Last  Chance 

Co.,  ante;    see  §  102. 

7.  Idaho  Co.  v.  Davis,  123  Fed.  396;  Tredinnick  v.  Red  Cloud 

Co.,  72  Cal.  78;  Hamilton  v.  Delhi  Co.,  118  Cal.  148; 
Phillips  v.  Salmon  River  Co.,  9  Ida.  149. 

8.  Hayes  v.  Lavagnino,   17  Utah  185. 

9.  Rev.  Stats.,  §2320;    Henderson  v.  Fulton,  35  L.  D.  652;  see 

Webb  v.  American  Co.,  157  Fed.  203;  McCann  v.  Mc- 
Millan, 129  Cal.  350. 

10.  Henderson   v.   Fulton,   ante;     compare  Webb  v.   American 

Co.,  ante;    see  E.  M.  Palmer,  38  L.  D.  294. 
lOa.   E.  M.  Palmer,  ante. 

11.  Belk  v.  Meagher,  ante. 

12.  Robertson  v.  Smith,  1  Mont.  410. 

13.  Forbes  v.  Gracey,  94  U.  S.  762. 

14.  Hamilton  v.   S'o.   Nevada  Co.,   33   Fed.   562;   see  Phoenix  v. 

Scott,  20  Wash.  48;  Bradford  v.  Morrison,  212  U.  S.  389. 

15.  Weed  v.  Snook,  144  Cal.  439. 

16.  Gaylord  v.  Place,  98  Cal.  472. 

17.  Wemple  v.  Yosemite  Co.,   4  Cal.  A.  78. 

18.  Black  v.  Elkhorn  Co.,   163  U.  S.  445;  Sullivan  v.  Iron  Co., 

143   U.   S.   431. 

19.  Bradford  v.  Morrison,  ante. 

20.  Black  v.  Elkhorn  Co.,  ante;  Phcenix  Co.  v.  Scott,  ante. 

21.  Black  v.   Elkhorn   Co.,   ante;   see  Headley  v.   Colonial  Oil 

Co.,  67  W.  Va.   628. 

22.  Doyle  v.  Austin,  47  Cal.  353. 

23.  Bakersfield  Co.  v.  Kern  Co.,  144  Cal.  148;   Forbes  v..  Gra- 

cey, ante;  Elder  v.  Wood,  208  U.  S.  226;  Graciosa  Oil 
Co.  v.  Sta.  Barbara  Co.,  155  Cal.  140.  The  right  of  pos- 
session means  the  claim  itself,  that  is  the  right  of 
possession  ot  the  land  for  mining  purposes.  The  tax 
deed  conveys  merely  such  right  without  affecting  the 
interest  of  the  United  States.  Elder  v.  Wood,  ante. 
See  §67-12;  §122-7. 


§  98]  MINE.  137 

§  97.  Markings.  Stakes  or  posts,  or  piles  of  stone 
or  boulders,  blazing  trees  along  the  boundaries  of  the 
claim,  or  at  the  corners  thereof,  cutting  away  under- 
growth, making  a  trail  through  the  timber  along  the 
sides  or  ends  of  the  claim,  putting  up  a  stake  at  the 
point  of  discovery,  blazing  stumps,  posting  a  notice 
at  the  point  of  discovery,  posting  a  notice  on  the 
ground,  placing  such  notice  in  a  tin  can,  and  attaching 
it  to  a  stake,  fastening  such  notice  to  a  tree,  or  placing 
it  in  a  box,  are  all  markings.1 

1.  Meydenbauer  v.  Stevens,  78  Fed.  787;    see  Book  v.  Justice 
Co.,  58  Fed.  106. 

§  98.  Mine.  A  "mine"  is  a  work  for  the  excava- 
tion of  minerals  by  means  of  pits,  shafts,  levels,  tun- 
nels, etc.,  as  opposed  to  a  "quarry,"  where  the  whole 
excavation  is  open.1 

2.  EXISTENCE  DETERMINED.     In  general  the  exist- 
ence of  a  mine  is  determined  by  the  mode  in  which 

the  mineral  is  obtained,  and  not  by  its  chemical  or 
geological  character.2 

3.  SYNONYMS.     The  term  "mine"  as  used  in  the 
mining  act  appears  to  be  synonymous  with  the  term 
"vein  or  lode."  3     The  term  "mine"  is  also  defined  as 
including  only  mines  valuable  for  their  minerals  or 
valuable  mineral  deposits.4 

4.  DESCRIPTIVE  NAME.    When  the  term  is  used  as 
a  part  of  the  descriptive  name  of  a  mining  prop- 
erty it  means  the  "whole  claim  or  body  of  mining 
ground."  5 

5.  WANT  OF  IDENTITY.    A  mine  or  mining  ground 
has  no  necessary  identity  with  land  patented  as  a 
placer  claim.6 

1.  Murray  v.   Allred,   100   Tenn.    100;   see   People  v.   Bell,    237 
111.  332;  Escott  v.  Crescent  Co.,   (Or.)   106  Pac.  452. 

A  prospect  is  a  parcel  of  mineral  land  from  which 
the  miner  hopes  to  obtain  mineral  or  metals  of  value 
at  a  profit  by  further  development  work. 


138  DEFINITIONS.  [Ch.  14 

2.  Johnson  v.  California  Lustral  Co.,   127  Cal.  283;    see  Mar- 

vel v.  Merritt,  116  U.  Si  11. 

3.  Bullion  Beck  Co.  v.  Eureka  Hill  Co.,  5  Utah  3. 

4.  Davis  v.  Weibbold,   139  U.  S.   507;  Dower  v.  Richards,   151 

U.  S.  658;  Barden  v.  N.  P.  R.  Co.,  154  U.  S.  288;    Calla- 
han  v.  James,  141  Cal.  291. 

5.  Smith  v.  Sherman,  12  Mont.  524;    see  §  67-10,  ante. 

6.  Byrnes  Estate,  112  Cal.  176. 

§  99.  Mineral.  Mineral  is  any  constituent  of  the 
earth's  crust,  more  especially  an  inorganic  body,  oc- 
curring in  nature  homogeneous  and  having  a  definite 
chemical  composition  which  can  be  expressed  by  a 
chemical  formula,  and  having  certain  distinguishing 
characteristics x  and  which  is  capable  of  being  got 
from  the  earth  for  the  purpose  of  profit. 

2.  MINERAL  SUBSTANCES.    The  term  "mineral"  in- 
cludes coal,  metal,  ores  of  all  kinds,  clay,  stone,  slate, 
cropolites,  salt,  paint  stone  and  similar  substances.2 

3.  WITHIN  PURVIEW  OF  MINING  LAWS.    Whatever 
is  recognized  as  mineral  by  the  standard  authorities 
on  the  subject,  whether  of  metallic  or  other  substances 
when  the  same  is  found  in  the  public  lands,  in  quantity 
and  quality  sufficient  to  render  the  land  more  valuable 
on  account  thereof  than  for  agricultural  purposes  is 
within  the  purview  of  the  mining  laws.3 

4.  FLOAT.    The  term  "float"  or  "float  rock"  means 
bunches,  blotches,   pieces,   or  boulders  of  quartz    or 
rock  lying  detached  from,  or  resting  upon  the  earth's 
surface  without  any  walls.4 

5.  ORE.     Ore  is  a  compound  of  metal  and  some 
other  substance.5 

6.  ORE    IN    SIGHT.     "Ore    in    sight"    means    ore- 
bearing  rock  so  separated  and  blocked  off  by  being 
worked  around  on  two  or  more  sides,  that  it  is  subject 
to  examination  and  measurement.6 

A  contract  of  purchase  of  mining  property  may  be 
rescinded  when  based  upon  a  mathematical  error  of 
an  expert  as  to  the  amount  of  "ore  in  sight."  7 


§  99]  MINERAL.  139 

7.  ORE,  PERSONAL  PROPERTY.     Ore,  or  other  min- 
eral   product,  becomes    personal  property  when  de- 
tached from  the  soil  in  which  it  is  imbedded.8 

8.  PLACERS.    The  term  "placers,"  as  used  in  the 
mining  act  of  Congress,  means  ground  within  defined 
boundaries  chiefly  valuable  for  its  deposits,  metallic 
or  non-metallic,  in  earth,  sand  or  gravel,  not  in  place, 
that  is,  in  a  loose  state,  upon  or  near  the  surface  or 
occupying  the  bed  of  ancient  rivers  or  valleys  and 
may,  in  most  cases,  be  collected  by  washing  or  amal- 
gamation, without  milling.9 

"Placers"  include  all  forms  of  deposit  excepting 
veins  of  quartz  or  other  rock  in  place.10 

9.  PLACER  WORKINGS.     Placer  workings  are  sur- 
face workings.11 

10.  ZONE.    A  metal  zone  is  equivalent  to  a  mineral 
zone,12  yet  the  terms  "mineral"  and  "metal"  are  not 
synonymous.13 

1.  Marvel   v.   Merritt,    116   U.   S.    11;   Jenkins  v.   Johnson,    13 

Fed.  Gas.  7271;  N.  P.  R.  Co.  v.  Soderberg,  104  Fed.  425. 
The  term  "mineral"  should  not  be  confined  to  metals 
or  metallic  ores.  All  metals  are  minerals,  but  all  min- 
erals are  not  metals.  N.  P.  R.  Co.  v.  S'oderberg,  188 
U.  S  526.  See  §  45,  ante. 

2.  Murray  v.  Allred,  100  Tenn.  100;  Williams  v.  South  Penn. 

Co.,  52  W.  Va.  181;    see  §47,  ante. 

3.  Pac.  Coast  M.  Co.  v.  N.  P.  R.  Co.,  25  L.  D.  233.     See  Zim- 

merman v.  Brunson,  39  L.  D.  310. 

4.  Book  v.  Justice  Co.,  58  Fed.  106;    Meydenbauer  v.  Stevens, 

78  Fed.  787.  Float  found  upon  unappropriated  terri- 
tory belongs  to  finder.  Burns  v.  Schoenfield,  1  Cal.  A. 
121. 

5.  Marvel  v.  Merritt,  ante. 

6.  Mudsill  Co.  v.  Watrous,  61  Fed.  163;    see  Green  v.  Turner, 

86  Fed.  837.  As  to  measurement  of  ore  under  water, 
see  Ward  v.  Eastwood,  3  Cal.  A.  437. 

7.  Johnson  v.  Withers,  9  Cal.  A.  52.     Prospective  purchasers 

have  a  right  to  rely  upon  statements  as  to  amount  of 
ore  in  sight.  Green  v.  Turner,  ante.  See  So.  Nev.  Dev. 
Co.  v.  Silva,  125  U.  S.  247. 

8.  Forbes  v.  Gracey,  94  U.  S.  762;  see  Waskey  v.  M'Naught. 

163  Fed.  929. 

9.  U.  S.  v.  Iron  Co.,  128  U.  S'.  673;  N.  P.  R.  Co.  v.  Soderberg, 

188  U.  S.  526;  Clipper  Co.  v.  Eli  Co.,  194  U.  S.  220; 
Gregory  v.  Pershbaker,  73  Cal.  109;  Moxon  v.  Wilkin- 
son, 2  Mont.  421;  Sullivan  v.  Schultz,  22  Mont.  541. 


140  DEFINITIONS.  [Ch.  14 

10.  Gregory  v.  Pershbaker,  ante;    compare  Henderson  v.  Ful- 

ton, 35  L.  D.  652;    see  Webb  v.  American  Co.,  157  Fed. 
203;  see  E.  M.  Palmer,  38  L.  D.  294. 

11.  Clipper  Co.  v.  Eli  Co.,  ante. 

12.  Mt.  Diablo  Co.  v.  Callison,  17  Fed.  Cas.  9886. 
13..  N.  P.  R.  Co.  v.  Soderberg,  99  Fed.  506. 

§  100.  Miner's  Inch.  The  term  "miner's  inch"  is 
not  definite  without  specification  of  the  head  or  pres- 
sure.1 

2.  CALIFORNIAN  PROVISION.  In  California  the 
standard  miner's  inch  of  water  is  equivalent  to  one 
and  one  half  cubic  feet  of  water  per  minute,  measured 
through  any  aperture  or  orifice.2 

1.  Longmire  v.   Smith,   26  "Wash.   439;    see  also  Dougherty  v. 

Haggin,   56  Cal.   522. 

2.  Cal.  Stats.  1901,  p.  660. 

§  101.  Prospecting  and  Mining.  Prospecting  and 
mining  are'  generic  terms, which  include  the  whole 
mode  of  obtaining  metals  and  minerals.1 

2.  PROCESS  OF  MINING.     The  process  of  mining  is 
the  prospecting  or  developing  of  ground  by  shaft,  tun- 
nel, or  other  opening,  whether  mineral  is  extracted 
at  a  profit  or  at  all;  by  quarrying;  or  by  dredging 
the  bed  or  banks  of  a  water  way  for  the  purpose  of 
obtaining  mineral  therefrom.2 

3.  PROCESS  6F  MILLING.     Milling  and  the  reduc- 
tion of  ores  by  smelting,  cyaniding,  etc.,  is  the  sepa- 
rating of  the  materials  found  together  in  the  earth, 
the  one  from  the  other,  and  extracting  from  the  mass 
the  particular  natural  product  desired.3 

4.  BUSINESS  OF  MINING.     The  business  of  mining 
for  the  benefit  of  the  mine  owner  (unless  otherwise 
provided  by  law)  is  as  much  a  private  affair  as  that 
of  the  farm  or  factory  and  the  right  of  eminent  do- 
main cannot  be  invoked  in  aid  of  it.4 

5.  INSTRUMENTALITIES.    The  true  meaning  of  such 
expressions    as    shafts,  tunnels,  levels,  uprises,  cross 
cuts,  inclines,   etc.,  when  applied  to  mines  signifies 


§  102]  MINING    CLAIM.  141 

instrumentalities  whereby   and  through   which   such 
mines  are  opened,  developed,  prospected  and  worked.5 

6.  SUPERINTENDENT.    A  superintendent  of  a  mine 
has  no  implied  general  authority  to  borrow  money  to 
carry  on  mining  operations  and  can  only  do  so  by 
express  authority  of  the  owner.    But  he  has  implied 
authority  to  bind  the  owner  in  the  employment  of 
labor  and  materials  to  run  the  mine,  and  incur,  if  nec- 
essary, debts  for  that  purpose ;   and  incidental  to  such 
authority  he  may  execute  and  deliver  to  employees,  or 
persons    furnishing    materials    necessary  to  run  the 
mine,  written  evidences  in  the  form  of  memoranda, 
orders  or  checks  for  such  amounts  as  may  be  due 
thereon.6 

7.  SHIFT  Boss.     The  term  "shift  boss"  means  a 
master  workman  who  directs  the  work  of  the  set  of 
men  engaged  upon  a  particular  shift ;  that  is,  a  set  of 
workmen  wiio  work  in  turns  with  other  sets.7 

8.  MINER.    A  miner  is  one  who  mines,  a  digger  for 
metals  and  other  minerals.     He  is  not  necessarily  a 
mechanic,  handcraftsman  or  artisan,  and    the    term 
imports  neither  learning  nor  skill.8 

1.  Williams  v.  Toledo  Co.,  25  Or.  426;    see  Bishop  v.  Baisley, 

28  Or.  119. 

2.  Johnson  v.  Cal.  Lustral  Co.,  127  Cal.  283.     For  custom  pre- 

vailing along  the  Comstock  Lode  in  regard  to  mining 
and  milling,  see  Fox  v.  Hale  &  Norcross  Co.,  108  Cal. 
369. 

3.  Rollins  Co.,  102  Fed.  982. 

4.  gutter  Co.  v.  Nichols,  152  Cal.  688;  see  §76,  ante. 

5.  Hines  v.  Miller,  122  Cal.  517." 

6.  Alderson  v.   Crocker,    28   Fed.    745;     see   Providence   Co.   v. 

Nicholson,  178  Fed.  29.  In  California  the  issuance 
as  payment  for  wages  of  any  evidence  of  indebtedness, 
unless  the  same  is  negotiable  and  payable  without  dis- 
count, and  is  payable  on  demand  at  some  bank  or 
other  established  place  of  business  within  the  state, 
is  prohibited,  under  penalty  of  both  fine  and  imprison- 
ment. Cal.  Stats.  1911,  p.  259;  see  Id.,  p.  1268. 

7.  Johnson  v.  Butte  &  Superior  Co.,  41  Mont.  158. 

8.  Watson  v.  Lederer,  11  Colo.  577. 

§  102.     Mining  Claim.     Independent    of    acts    of 
Congress  providing  a  mode  for  the  acquisition  of  title 


142  DEFINITIONS.  [Ch.  14 

to  the  mineral  lands  of  the  United  States,  the  term 
"mining  claim"  has  always  been  applied  to  a  portion 
of  such  lands  to  which  the  right  of  exclusive  possession 
and  enjoyment,  by  a  private  person  or  persons,  has 
been  asserted  by  actual  occupation,  or  by  compliance 
with  the  local  mining  laws,  or  district  rules.1 

2.  STATUTORY    MEANING.     As    the    term  "mining 
claim"  is  used  in  the  mining  act,  a  mining  claim  is 
that  portion  of  a  vein  or  lode  and  of  the  adjoining 
surface,  or  of  the  surface  and  subjacent  material  to 
which  a  claimant  has  acquired  the  right  of  possession 
by  virtue  of  a  compliance  with  such  statute  and  the 
local  laws  and  rules  of  the  district  in  which  the  loca- 
tion may  be  situated.2 

3.  DISTINCTION    BETWEEN    MINING    CLAIM    AND 
LOCATION.     A  mining  claim  is  a  parcel  of  land  con- 
taining precious  metals  in  its  soil  or  rock.    A  location 
is  the  act  of  appropriating  such  parcel,  according  to 
certain  established  rules.3 

4.  DISTINCTION  BETWEEN  MINING  CLAIM  AND  MIN- 
ING GROUND.    No  land  can  be  a  "mining  claim"  unless 
based  upon  a  location,  or  its  equivalent;   otherwise  it 
may  be  "mining  ground"  or  a  "mine."  4 

The  terms  "valuable  for  minerals"  and  "valuable 
for  mineral  deposits"  are  not  equivalent  to  the  term 
"mining  ground."  5  Hence,  land  from  which  a  min- 
eral substance  is  obtained  from  the  earth  by  the 
process  of  mining  may  with  propriety  be  called  min- 
ing ground  or  mining  land.6 

5.  NAVIGABLE  RIVER.    The  bed  of  a  navigable  river 
is  not  subject  to  mining  location,  but  if  mining  is  con- 
ducted thereon  by  dredging,  it  is  "mining  ground."  7 

6.  MEXICAN  GRANT.    Land  within  a  Mexican  .grant 
is  not  a  mining  claim  within  the  purview  of  a  state 
law  giving  to  a  miner  a  lien  for  his  unpaid  work  upon 
a  "mining  claim,"  although  many  "mines"  may  have 
been  opened  within  its  boundaries.8 


§  103]  MINING  RIGHT.  143 

7.  AGRICULTURAL    PATENT.     Under    such    a    law 
land  covered  by  an  agricultural  patent  and  worked 
for  its  mineral  deposits  is  "mining  ground"  and  not  a 
"mining  claim."  9 

8.  OIL  CLAIM.    Land  worked  as  an  oil  claim,10  or 
as  a  coal  mine,11  is  a  mining  claim  under  such  a 
statute. 

9.  DITCH.    A  ditch  appurtenant  to  and  furnishing 
water  to  a  mining  claim,  is  mining  ground  >  within  the 
meaning  of  a  statute,  requiring  the  consent  of  a  major- 
ity of  the  stockholders  of  a  corporation  to  a  sale  of  its 
mining  ground.12 

10.  UNWORKED  PLACER.    A  patented  mining  claim, 
unworked  for  years,  is  not  a  mine  in  the  sense  of  a 
statute  providing  for  the  summary  sale  of  mines  in  a 
probate  proceeding.13 

1.  Morse  v.  De  Ardo,  107  Cal.  622. 

2.  Mt.  Diablo  Co.  v.  Callison,  17  Fed.  Gas.  9886. 

3.  St.   Louis   Co.    v.    Kemp,    104   U.    S.    636;   Williams   v.    Sta. 

Clara  Ass'n,  66  Cal.  193;    see  §  96,  ante. 

4.  Forbes   v.   Gracey,    94   U.   S.    762;     Williams   v.    Sta.    Clara 

Ass'n.,   ante;   Morse  v.   De  Ardo,   ante;   Ball  v.   Tolman, 
119  Cal.  358;    see  Bewick  v.  Muir,  83  Cal.  368. 

5.  Johnson  v.  Cal.  Lustral  Co.,  127  Cal.  283. 

6.  People  v.  Bell,  237  111.  332. 

7.  Ball  v.  Tolman,  ante. 

8.  Williams  v.  Sta.  Clara  Ass'n,  ante. 

9.  Morse  v.  De  Ardo,  ante;    see  Gray  v.  N.  M.  Co.,    (N.  M.) 

110  Pac.  102. 

10.  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577. 

11.  Escott  v.  Crescent  City  Co.,   (Or.)   106  Pac.  452. 

12.  McShane  v.  Carter,  80  Cal.  310. 

13.  Byrnes  Estate,  112  Cal.  176.- 

§103.  Mining  Right.  A  "mining  right"  upon  a 
specific  piece  of  ground  is  a  right  to  enter  upon  and 
occupy  the  ground  for  the  purpose  of  working  it, 
either  by  underground  excavation  or  open  workings, 
to  obtain  from  it  the  minerals  or  ores  which  may  be 
deposited  therein.  By  implication  the  grant  of  such 
right  carries  with  it  whatever  is  incident  to  it,  and 
necessary  to  its  beneficial  enjoyment.1 


144  DEFINITIONS.  [Ch.  14 

2.  SPECIES   OF   TRADE.     The  working  of  a  mine 
under  a  bare  "mining  right"  has  been  uniformly  con- 
sidered by  courts  of  equity  as  a  species  of  trade.2 

3.  LEGAL  EELATIONS.     The  legal  relations  existing 
between  two  or  more  persons  interested  in  such  a 
right  is  that  of  a  qualified  partnership  and  the  rem- 
edies relating  to  a  mining  partnership  are  available 
for  the  assertion  or  violation  of  any  right  arising  out 
of  it.3 

4.  MINING  TITLE.    By  "mining  title"  as  employed 
in  Eev.  Stats.,  §  910,  is  meant  the  title  which  the  miner 
obtains  by  his  discovery  and  location,  followed  up  by 
a  compliance  with  the  statutory  regulations  to  pre- 
serve his  right  of  possession.4 

1.  Smith   v.    Cooley.    65    Cal.   46;    People  v.   Bell,    237   111.    332. 

See  Armstrong  v.  Maryland  Co.,  67  W.  Va.  589;  see 
Last  Chance  Co.  v.  Bunker  Hill  Co.,  131  Fed.  579;  see 
§  81-4,  ante. 

A  "mineral  right"  imports  title  or  right  to  all  that  is 
mineral  in  the  land.  McGraw  v.  Lakin,  67  W.  Va.  385. 

2.  Smith  v.  Cooley,  ante. 

3.  Id.;    see  §  58,   ante. 

4.  Gillis  v.  Downey,  85  Fed.  483. 


§  104.  Public  Land.  The  term  "public  land"  as 
used  in  the  legislation  of  Congress  means  such  lands 
as  are  subject  to  appropriation  as  a  mining  claim  1  or 
subject  to  sale,  or  other  disposition,  under  general 
laws.2 

2.  DISTINCTION  BETWEEN  PUBLIC  LAND  AND  PUB- 
LIC USE.     There  is  a  clear  distinction  between  public 
lands  and  lands  that  have  been  severed  from  the  pub- 
lic domain  and  reserved  for  sale,  or  other  disposition 
under  general  laws.    Such  reservation  severs  the  land 
from  the  mass  of  the  public  domain  and  appropriates 
it  to  a  public  use.3 

3.  UNOCCUPIED  AND  UNAPPROPRIATED  LAND.     The 
terms  "unoccupied"   and  "unappropriated"  refer  to 
land  that  is  not  in  the  possession  of  one  who  claims 


§  104]  PUBLIC  LAND.  145 

the  right  of  possession  thereto  by  virtue  of  a  com- 
pliance with  the  law.4 

4.  VACANT  LAND.    Land  is  not  vacant  when  occu- 
pied as  a  mining  claim  without  discovery  by  one  who 
is  diligently  prospecting  it  for  the  minerals  which 
it  may  contain.5 

5.  OCCUPANCY  AND  IMPROVEMENTS.     Mere    occu- 
pancy of  the  public  lands  and  making  improvements 
thereon  give  no  vested  right  therein  as  against  the 
United  States  and  consequently  not  against  any  pur- 
chaser from  them.6 

6.  PUBLIC  MINERAL  LAND.    Public  mineral  land  is 
land  belonging  to  the  United  States  containing  a  de- 
posit of  mineral  in  some  form,  metalliferous  or  non- 
metalliferous,  in  quantity  and  quality  sufficient    to 
justify  expenditures  in  the  effort  to  extract  it  and 
subject  to  occupation  and  purchase  under  the  mining 
laws.7 

7.  HOMESTEADS.     One  who  has  a  valid  homestead 
entryr  upon  lands  classed  as  agricultural,  but  subject 
to  the  mineral  laws,  may  be  divested  of  his  right  by  a 
showing  that  the  land  is  more  valuable  for  mineral 
than  agricultural  purposes,  if  made  at  any  time  be- 
fore final  proof  and  payment  are  made  and  final  re- 
ceipt issues.8 

8.  POSSESSION.     The  homestead  entryman  is  enti- 
tled to  exclusive  possession    as    against    all    adverse 
claimants  except  one  having  a  valid  prior,  equal  or 
superior  right.    A  person  qualified  to  make  a  mining 
location  and  having  a  valid  prior  location  has  such 
right  of  possession  as  against  the  homestead  entry- 
man.   But  a  contestant  for  a  mining  claim  or  location 
is  not  entitled  to  either  joint  or  adverse  possession  as 
against  the  homestead  entryman.9 

1.  Rev.  Stats.,  §  2319;    McFadden  v.  Mt.  View  Co.,  97  Fed.  670. 

2.  Newhall  v.  Sanger,  92  U.  S.  761;    Barden  v.  N.  P.  R.  Co.,  154 

U.   S.  288;  U.  P.  R.  v.  Harris,   215  U.  S.  386;  McFadden 
v.  Mt.  View  Co.,  ante;  U.  S.  v.  Blendauer,  122  Fed.  703. 


146  DEFINITIONS.  ,      [Ch.  14 

3.  U.  S.  v.  Tygh  Valley  Co.,  76  Fed.   693. 

4.  Conn  v.  Oberto,   32   Colo.   313. 

5.  Cosmos  Co.  v.  Gray  Eagle  Co.,  104  Fed.  20,  112  Fed.  4;  Mc- 

Lemore  v.  Express  Co.,   158  Cal.  559. 

6.  Sparks   v.   Pierce,    115   U.   S.    408;   Hays   v.   U.   S.   175   U.   S. 

248;  S'.  P.  R.  Co.  v.  Purcell,  77  Cal.  69;  see  Bonner  v. 
Meikle,  82  Fed.  697;  Chism  v.  Price,  54  Ark.  251. 
Every  competent  locator  has  the  right  to  initiate  a 
lawful  claim  to  unappropriated  public  land  by  a  peace- 
able adverse  entry  upon  it  while  it  is  in  the  possession 
of  those  who  have  no  superior  right  to  acquire  the 
title  or  to  hold  the  possession.  Any  other  rule  would 
make  the  wrongful  occupation  of  public  land  by  a 
trespasser  superior  in  right  to  a  lawful  entry  of  it 
under  the  acts  of  Congress  by  a  competent  locator. 
Thallman  v.  Thomas,  111  Fed.  277;  Malone  v.  Jackson, 
137  Fed.  878;  see  also  Nev.  Sierra  Co.  v.  Home  Oil  Co., 
98  Fed.  673;  Chrisman  v.  Miller,  140  Cal.  440. 

7.  Pac.  Coast  Co.  v.  N.  P.  R.  Co.,  25  L.  D.  233;    see  Deffebach 

v.  Hawke,  115  U.  S.  392;  Alford  v.  Barnum,  45  Cal.  482. 

8.  Bay  v.  Oklahoma  Co.,   13  Okla.  425. 

9.  Id. 

§  105.  Salt  Lick.  A  salt  lick  is  so  called  in  the 
Western  country  from  the  fact  that  deer  and  other 
wild  animals  resort  to  it,  and  lick  or  drink  the  brack- 
ish water.  And  in  this  respect  no  distinction  is  per- 
ceived between  a  "lick"  as  frequently  used  and  a  "salt 
spring."  l 

1.  Indiana  v.  Miller,  13  Fed.  Cas.  7022. 

§106.  Scrip.  The  term  "scrip,"  sometimes  called 
"indemnity  certificates"  or  "land  warrants,"  has  not 
been  judicially  defined. 

2.  WRITTEN  AUTHORIZATION.     It  is  a  written  au- 
thorization, created  by  legislative  enactment,  whereby 
the  holder  thereof  is  entitled  to  acquire  public  non- 
mineral  land,  in  the  certain  quantity  therein  named 
upon  the  surrender  of  the  scrip  to  the  officers  of  the 
land  office  for  the  district  of  lands  subject  to  sale  and 
wherein  the  selected  land  may  lie,  or  as  otherwise 
provided  by  law. 

3.  SELECTION.     The  scrip  may  be  laid  upon  sur- 
veyed or  unsurveyed  non-mineral  land,  as  the  terms 
of  the  particular  act  creating  it  may  permit. 


§  107]  TUNNEL   RIGHT.  147 

4.  SALE.     The  scrip  is  subject  to  assignment  and 
sale  in  the  open  market.    Its  price,  per  acre,  therein  is 
governed  by  the  law  of  supply  and  demand. 

5.  GUARANTEE.    The  seller  should,  properly,  guar- 
antee its  acceptance  by  the  government  as  the  doctrine 
of  a  bona  fide  purchaser  does  not  apply  to  one  who 
purchases  from  a  pre-emptor  before  patent  issues.1 

1.  R.  F.  Pettigrew,  2  L.  D.  598.  See  James  v.  Germania  Co., 
107  Fed.  597;  Pol.  C.,  §3398  et  seq.  For  cases  which 
involved  conflicts  between  "scrippers"  and  oil  locators, 
see  McLemore  v.  Express  Co.,  158  Cal.  559. 

§  107.  Tunnel  Right.  A  grant  of  a  tunnel  right 
through  a  specific  piece  of  ground  is  a  right  to  enter 
upon  and  occupy  the  ground  for  the  purpose  of  prose- 
cuting work  in  the  tunnel,  and  to  extract  therefrom 
waste  rock  or  earth  necessary  to  complete  the  running 
of  the  tunnel,  and  making  such  use  thereof,  after  com- 
pletion, as  may  be  necessary  to  work  the  mining 
ground  or  lode  owned  by  the  party  running  the  tun- 
nel. 

2.  IMPLIED  RIGHTS.  By  implication  the  grant  of 
such  a  right  carries  with  it  every  incident  and  appur- 
tenant thereto,  including  the  right  to  dump  the  waste 
rock  at  the  mouth  of  the  tunnel  on  the  land  owned 
by  the  grantor  at  the  time  of  the  conveyance  of  the 
tunnel  right,  such  right  or  easement  being  necessary 
for  the  full  and  free  enjoyment  of  the  tunnel  right.1 

1.   Scheel  v.  Alhambra  Co.,  79  Fed.  821. 


'.     CHAPTER  XV. 

COAL  L,AN1>S. 

§  108.  In   general — entry— preferential   right — consolidation. 

§  108.  In  General.  Coal  lands  are  mineral  lands  * 
and  subject  to  location  as  such  2  when  not  within  the 
limits  of  a  railroad  grant.3 


148  COAL  LANDS.  [Ch.  15 

The  fee-simple  title  thereto  is  acquired  under  the 
coal-land  laws.4  Land  classed  as  coal  land  may  be 
patented  as  non-mineral  and  the  underlying  coal  be 
reserved  to  the  government.5 

.  2.  ENTRY.  Coal  lands  are  subject  to  patent,  by 
legal  subdivisions,6  except  in  Alaska,7  to  a  limited  ex- 
tent,8 by  a  qualified  person  or  association  of  persons 
or  a  corporation  9  under  the  provisions  of  the  coal- 
land  laws  only.10 

3.  PREFERENTIAL  EIGHT.    Location  is  not  a  condi- 
tion precedent  to,  but  when  coupled  with  actual  pos- 
session and  improvements  gives  a  preferential,  that 
is,  exclusive  1:L  right  of  entry. 

4.  CONSOLIDATION.     There  is  no  limitation  as  to 
the  purchase  or  sale  of  coal  lands  after  due  entry 
thereof.12 

1.  Mullan  v.  U.  S.,  118  U.  S.  271;  Brown  v.  N.  P.  R.  Co.,  31  L. 

D.   29;   T.  P.  Crowder,   30  L.  D.   92. 

2.  Leonard  v.  Lennox,  181  Fed.  760. 

3.  Barden  v.  N.  P.  R.   Co.,   154  U.  S.   288.     See  this  case  for 

collection  of  land  grant  acts  to  railroad  companies 
(p.  317). 

4.  Rev.   Stats.,   §2347;   35   Stats.   844;   36   Stats.   583;   38  L.   D. 

183-576;  39  L.  D.  156-179. 

5.  35  Stats,  844;  36  Stats,  583;  39  L.  D.  181-576;  Instructions, 

39  L.  D.  179.  Prospecting  for  coal  may  subsequently  be 
prosecuted  upon  such  lands.  The  prospector  must  give 
bond  or  undertaking,  approved  by  the  Secretary  of  the 
Interior,  as  security  for  the  payment  of  all  damages 
to  the  crdps  and  improvements  on  such  lands  by 
reason  of  such  prospecting.  36  Stats.  583. 

6.  Rev.   Stats.,  §  2347. 

7.  33  Stats,  525;  Coal  lands  in  Alaska,  39  L.  D.  86,  322.  327; 

Instructions,  ante. 

8.  Rev.   Stats.,   §2347;    see   Rev.   Stats.,   §2350;   see   Jessie   E. 

Oviatt,  35  L.  D.  235. 

9.  Id.  U.  S.  v.  Trinidad  Co.,  137  U.  S.  160. 

10.  Rev.  Stats.,  §2347;  see  Instructions,  38  L.  D.  271. 

11.  Chas.  S.  Morrison,  36  L.  D.  126;  see  E.  F.  Filer,   36  L.  D. 

360.     See  §  93,  ante. 

12.  Ireland  v.   Henkle,   179   Fed.   993;   see   U.   S'.   v.   Allen,   180 

Fed.  855;  U.  S.  v.  Doughten,  186  Fed.  226;  see  Hiram 
M.  Hamilton,  38  L.  D.  597. 


ERRATUM 

[The  following  matter,  haying  been  accidentally  omitted 
in  the  transcription  of  the  original  notes  upon  the  subject,  it 
is  here  inserted.] 

§  110.  4a.  Intra-limital  Rights.  Where  there  are 
two  conflicting  lode  locations,  within  each  of  which 
there  is  a  portion  of  the  apex  of  the  same  lode  or  vein, 
the  doctrine  of  extra-lateral  rights  has  no  application, 
as  the  rights  of  the  junior  locator  cease  at  the  point 
where  the  vein  or  lode  passes  a  surface  boundary  line 
of  the  senior  location.1  This,  precisely  as  in  cases  of 
controversy  where  locations  overlap  each  other  length- 
wise on  the  strike  of  the  vein  or  lode.2 

2.  PROOF  OP  PRIORITY.  Where  the  patent  for 
either  of  such  claims  does  not  give  the  date  of  the  loca- 
tion such  date  may  be  proved  de  hors  the  patent,3 

1.  Tyler  v.   Sweeney,    79   Fed.   280;     Jefferson   Co.  v.  Anchoria 

Co.,  32  Colo.  176;  see  also,  Cosmopolitan  Co.  v.  Foote, 
101  Fed.  518.  For  Form  of  Instruction  to  Jury,  see 
Tyler  Co.  v.  Sweeney,  54  Fed.  284. 

2.  Tyler  Co.  v.  Sweeney,  54  Fed.  284. 

3.  Last  Chance  Co.   v.  Tyler  Co.,   61  Fed.   557;    s.  c.   157  U.   S. 

683. 


§  110]  LODE  CLAIMS.  149 

CHAPTER  XVI. 

LODE  CLAIMS. 

§  110.  In  general — top  or  apex — surface  rights — subsurface 
rights — presumption — departure  from  surface  lines. 

§  111.  Limitation  of  subsurface  rights— form  of  location — 
exceptions — priority  of  location — priority  immaterial. 

§  112.  Dip  right — basis  of  right — identity  of  vein — want  of 
identity. 

§  113.  Unlawful  intrusion — exception. 

§  110.  In  General.  A  lode  claim  is  that  portion 
of  a  vein  or  lode,  and  of  the  adjoining  surface,  which 
has  been  acquired  by  a  compliance  with  the  law.1 

2.  TOP  OR  APEX.     A  lode  claim  must  include  the 
top  or  apex  of  a  vein  or  lode,  however  small  the  latter 
may  be.2 

3.  SURFACE  EIGHTS.    The  locator  has  the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface 
within  the  lines  of  his  location.3 

Courts  cannot  enlarge  a  location  nor  make  a  new 
location  by  running  either  new  end  or  side  lines.4 

4.  SUBSURFACE  RIGHTS.     The  locator  has  the  ex- 
clusive right  of  possession  and  enjoyment  of  all  veins, 
lodes  and  ledges  throughout  their  entire  depth,  the 
top  or  apex  of  which  lies  inside  of  such  surface  lines 
extended  downward  vertically  5  whether  the  vein  or 
lode  extends  to  the  end  lines  or  not,6  or  departs  from 
the  side  lines  of  the  claim,7  provided,  no  right  has  at- 
tached in  favor  of  other  parties  at  the  time  the  loca- 
tion was  made.8 

5.  PRESUMPTION.    Until  the  contrary  is  shown  it  is 
presumed  that  a  lode  location  includes  a  vein  or  lode.9 

6.  DEPARTURE  FROM  SURFACE  LINES.     Where  the 
vein  or  lode  passes  through  one  of  the  parallel  end 
lines  and  one  of  the  side  lines  of  a  location,  the  extra- 
lateral  right  is  bounded  by  the  vertical  plane  of  such 
end   line,    and   a   parallel   plane   passing   downward 
through  the  point  where  the  top  or  apex  crosses  the 
side  line.10     Where  a  vein  or  lode,  upon  its  strike 


150  LODE  CLAIMS.  [Ch.  16 

crosses  an  end  line,  departs  from  the  claim  through 
a  side  line  and  at  some  distance  re-enters  the  claim 
and  passes  through  the  complemental  end  line  of  the 
claim  so  as  to  "belly"  beyond  the  side  line  into  ad- 
jacent territory,  the  extra-lateral  right  to  such  vein 
or  lode  is  bounded  by  each  end  line  and  the  several 
points  at  which  the  vein  or  lode  intersects  such  side 
line.11 

1.  Mt.  Diablo  Co.  v.  Callison,  17  Fed.  Cas.  9886. 

The  mining"  act  of  California  provides  that:  "Any 
person,  a  citizen  of  the  United  States,  or  who  has  de- 
clared his  intention  to  become  such,  who  discovers  a 
vein  or  lode  of  quartz,  or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  lead,  tin,  copper  or  other  valu- 
able deposit,  may  locate  a  claim  upon  such  vein  or  lode 
by  defining  the  boundaries  of  the  claim,  in  the  manner 
hereinafter  described,  and  by  posting  a  notice  of  such 
location,  at  the  point  of  discovery,  which  notice  must 
contain: 

First.  The  name  of  the  lode  or  claim. 

Second.  The  name  of  the  locator  or  locators. 

Third.  The  number  of  linear  feet  claimed  in  length 
along  the  course  of  the  vein,  each  way  from  the  point 
of  discovery,  with  the  width  on  each  side  of  the  center 
of  the  claim,  and  the  general  course  of  the  vein  or 
lode,  as  near  as  may  be. 

Fourth.     The  date  of  the  location. 

Fifth.  Such  a  description  of  the  claim  by  reference 
to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim  located.  C.  C.,  §  1426. 

The  locator  must  define  the  boundaries  of  his  claim 
so  that  they  may  be  readily  traced,  and  in  no  case 
shall  the  claim  extend  more  than  1500  feet  along  the 
course  of  the  vein  or  lode,  nor  more  than  300  feet  on 
either  side  thereof,  measured  from  the  center  line  of 
the  vein  at  the  surface.  C.  C.,  §  1426a. 

Within  30  days  after  the  posting  of  his  notice  of 
location  upon  a  lode-mining  claim,  the  locator  shall 
record  a  true  copy  thereof  in  the  office  of  the  County 
Recorder  of  the  county  in  which  such  claim  is  situated, 
for  which  service  the  County  Recorder  shall  receive 
a  fee  of  $1.  C.  C.,  §  1426b. 

2.  Larkin  v.  Upton,  144  U.  S.  19. 

3.  Mt.  Diablo  Co.  v.  Callison,  ante;  Crown  Point  Co.  v.  Buck, 

97  Fed.  462.  "Enjoyment"  of  the  surface  of  an  un- 
patented  mining  claim  is  limited  to  uses  incident  to 
mining  operations.  U.  S'.  v.  Rizzinelli,  182  Fed.  675. 
See  §  208,  post.  When  the  land  is  patented  it  is  open 
to  other  uses.  Schwab  v.  Beam,  86  Fed.  41. 

4.  King  v.  Amy  Co.,  152  U.  S'.  222;  Cosmopolitan  Co.  v.  Foote, 

101  Fed.  518.  Boundary  planes  are  not  subject  to  per- 
petual re-adjustment  according  to  subterranean  de- 
velopments made  by  mine  workings.  Iron  Co.  v.  Elgin 
Co.,  118  U.  S.  196. 


§  111]          LIMITATION  OF  SUBSURFACE  RIGHTS.  151 

5.  Flagstaff  Co.  v.  Tarbet,  98  U.  S.  463;  Iron  Co.  v.  Elgin  Co., 

ante;  Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55; 
Calhoun  Co.  v.  Ajax  Co.,  182  U.  S.  499;  Iron  Co.  v. 
Cheesman,  8  Fed.  297;  Last  Chance  Co.  v.  Bunker  Hill 
Co.,  131  Fed.  579;  Daggett  v.  Yreka  Co.,  149  Cal.  357; 
Ajax  Co.  v.  Hilkey,  31  Colo.  131;  So.  Nev.  Co.  v.  Holmes 
Co.,  27  Nev.  107. 

6.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante.     It  will  be  pre- 

sumed that  the  vein  or  lode  extends  to  each  end  line. 
Armstrong  v.  Lower,  6  Colo.  393;  see  San  Miguel  Co.  v. 
Bonner,  33  Colo.  207. 

7.  Flagstaff  Co.  v.  Tarbet,  ante;   Iron  Co.  v.  Cheesman,   116 

U.  S.  529. 

8.  See  note   5,   ante,   Amador  Median   Co.   v.   So.   Spring  Hill 

Co.,  36  Fed.  668. 

9.  Patterson  v.  Hitchcock,  3  Colo.  533. 

10.  Del    Monte    Co.    v.    Last    Chance    Co.,    ante;    see    Belk    v. 

Nickerson,  29  L.  D.  662;  Cosmopolitan  Co.  v.  Foote, 
ante. 

11.  Waterloo  Co.  v.  Doe,  82  Fed.  45. 

§  111.  Limitation  of  Subsurface  Rights.  Subsur- 
face rights  are  controlled  by  the  form  of  the  surface 
location,1  and  sometimes  by  questions  of  priority.2 

2.  FORM  OF  LOCATION.    No  extra-lateral  right  at- 
taches to  an  irregularly  shaped  location  as  when  in 
the  shape  of  a  horseshoe  3  or  of  an  isosceles  triangle.4 
The  extra-lateral  right  is  limited  by  the  side  lines 
when  they  cross  the  vein  or  lode.5 

3.  EXCEPTIONS.     The   extra-lateral   right   attaches 
to  irregularly  shaped  locations  which  were  made  prior 
to  the  act  of  1872.6    It  does  not  attach  to  a  horizontal 
vein  or  lode,7  nor  to  a  vein  or  lode  not  "in  place,"  8  nor 
to  a  "  blind  vein  or  lode"  within  the  limits  of  a  placer 
location.9 

4.  PRIORITY  OF  LOCATION.    The  extra-lateral  right 
may  be  lost  for  want  of  priority  of  location,10   as 
where  two  or  more  veins  unite,11  intersect  or  cross 
each  other.12 

5.  PRIORITY   IMMATERIAL.     The   dates   of   the   re- 
spective locations  or  patents  are  immaterial  in  the 
pursuit  of  a  vein  or  lode,  the  top  or  apex  of  which  is 
in  a  claim  adversely  held,13  except  where  the  vein  or 
lode  upon  its  dip  enters  ground  which  has  been  pre- 
viously patented  as  agricultural  in  character.14 


152  LODE  CLAIMS.  [Ch.  16 

1.  Flagstaff  Co.  v.  Tarbet,  98  U.  S.  463;  Iron  Co.  v.  Elgin  Co.. 

118  U.  S.  196;  Argentine  Co.  v.  Terrible  Co.,  122  U.  S. 
478;  Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55; 
Mont.  Co.  v.  Clark,  42  Fed.  626.  The  mining  act  limits 
the  dimensions  of  a  lode  claim  but  does  not  prescribe 
its  shape.  Breece  Co.,  3  L.  D.  11. 

2.  Rev.  Stats.,  §  2336. 

3.  Iron  Co.  v.  Elgin  Co.,  ante. 

4.  Mont.  Co.  v.  Clark,  ante. 

5.  Flagstaff  Co.   v.   Tarbet,   ante;   Argentine   Co.  v.   Terrible 

Co.,  ante;  King  v.  Amy  Co.,  152  U.  S.  222;  Last  Chance 
Co.  v.  Tyler  Co.,  157  U.  S.  683. 

6.  Argonaut   Co.   v.    Kennedy   Co.,    131   Cal.    15;    aff'd    in    189 

U.  S'.  1. 

7.  Leadville  Co.  v.  Fitzgerald,  15  Fed.  Cas.  8158. 

8.  Tabor  v.  Drexler,  23  Fed.  Cas.  13723. 

9.  Rev.  Stats.,  §  2333. 

10.  Rev.  Stats.,  §  2336. 

11.  -Little  Josephine  Co.  v.  Fullerton,  58  Fed.  521. 

12.  Rev.  Stats.,  §  2336. 

13.  Colo.   Cent.   Co.   v.   Turck,   50  Fed.   888;   s.   c.   70  Fed.   294; 

Golden  v.  Murphy,  27  Nev.  379;  Blake  v.  Butte  Co.,  2 
Utah  54. 

14.  Amador  Median  Co.  v.  So.  Spring  Hill  Co.,  36  Fed.  468. 

§  112.  Dip  Right.  The  right  to  follow  a  vein  or 
lode  upon  its  dip  or  downward  course  outside  the  side 
lines  of  a  lode  claim  x  to  any  depth  below  the  surface, 
although  laterally  its  inclination  shall  carry  it  far 
from  the  perpendicular,2  is  usually  called  the  extra- 
lateral  right.3 

2.  BASIS  OF  RIGHT.     The  dip  right  is  based  upon 
the  supposition  that  the  end  lines  of  the  location  cor- 
respond substantially  with  the  strike  of  the  vein  or 
lode  at  its  apex.4 

3.  IDENTITY  OF  VEIN.    It  is  essential  that  the  iden- 
tity of  the  vein  or  lode  pursued  into  adjoining  ground 
be  preserved.    It  must  be  continuous.    Its  identity  is 
not  destroyed  by  interruptions  or  closure  of  the  fissure 
if  the  extent  thereof  does  not  prevent  the  tracing  of 
the  vein  or  lode  through  the  fissure  to  be  identical  in 
its  parts  as  a  geological  fact.5 

4.  WANT  OF  IDENTITY.    The  want  of  identity  and 
continuity  of  a  vein  or  lode  may  be  established  by  as- 
says of  samples  taken  from  a  "fault"  therein,  con- 
sisting of  country  rock.6 

See  §§  50,  55,  56,  57,  58,  ante. 


§  113]  UNLAWFUL,  INTRUSION.  153 

1.  Flagstaff  Co.  v.  Tarbet,  98  U.  S.  463;  Iron  Co.  v.  Cheesman, 

116  U.  S.  529;  see  Cheesman  v.  Shreve,  40  Fed.  787. 

2.  Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55. 

3.  Grand  Cent.  Co.  v.  Mammoth  Co.,  29  Utah  490. 

4.  Flagstaff   Co.   v.   Tarbet,    ante;    see   Cheesman   v.    Hart,    42 

Fed;  98;  Gibson  v.  Hjul,    (Nev.)    108  Pac.   759. 

5.  Butte  &  Boston  Co.  v.   Society   23  Mont.   177;  Grand  Cent. 

Co.  v.  Mammoth  Co.,  ante. 

6.  Anaconda  Co.  v.  Heinze,  27  Mont.  161. 

§  113.  Unlawful  Intrusion.  The  owner  of  the  top 
or  apex  may  not,  without  the  consent  of  the  owner, 
legally  invade  the  surface  of  ground  adversely  held, 
nor  subterraneously  explore  such  ground  for  the  pur- 
pose of  ascertaining  the  .probable  continuance  of  his 
vein  or  lode  therein.1 

2.  EXCEPTION.  It  is  not  unlawful  to  place  the 
location  monuments  upon  adjacent  lands,  the  property 
of  others,  without  their  consent,  for  the  purpose  of 
securing  the  extra-lateral  right  for  an  irregularly 
shaped  piece  of  ground  having  the  top  or  apex  of  a 
vein  or  lode  therein.2 

1.  S't.   Louis   Co.  v.  Mont.   Co.,   194  U.   S.   235;   Patten  v.   Con- 

glomerate Co.,  35  L.  D.   617. 

2.  Del  Monte  Co.  v.  Last  Chance  Co.,   171  U.  S.   55;  see  §177- 

14-15,  ante. 

CHAPTER  XVII. 

MILL-SITES. 

§116.  In  general — limitations — character  of  land  —  mining 
and  milling  purposes — who  may  locate — location — an- 
nual expenditure — patent. 

§  116.  In  General.  Non-mineral  land  not  adja- 
cent to  a  vein  or  lode,1  but  which  may  be  in  contact 
with  the  side  line  of  a  lode  claim,2  not  within  the  limits 
of  a  Congressional  land  grant  3  nor  within  reserved  or 
appropriated  territory,4  may,  to  the  extent  of  5  acres, 
be  located  for  "mining  and  milling  purposes."  5 

2.  LIMITATIONS.  A  mill-site  cannot  be  appro- 
priated merely  for  water  6  nor  for  the  purpose  of  se- 
curing timber  growing  upon  the  land ;  7  but  both  a 
mill-site  and  a  water  right  may  be  located  upon  the 


154  MILL-SITES.  [Ch.  17 

same  tract  of  land.8  Satisfactory  and  sufficient  reason 
should  exist  for  the  inclusion  of  more  than  one  mill- 
site  in  an  application  for  patent  for  a  group  of 
claims.9  If  there  be  several  mill-sites  applied  for  they 
should  not,  perhaps,  aggregate  more  than  5  acres.10 

The  law  makes  no  provision  for  acquiring  land  as  a 
mill-site  additional  to  or  in  connection  with  an  exist- 
ing mill-site.11 

3.  CHARACTER  OF  LAND.    The  character  of  the  land 
must  be  determined  of  the  date  the  right  attached  to 
the  mill-site,  as  changed  conditions  in  the  character  of 
the  ground  cannot  affect  the  right  of  the  mill-site 
claimant.12 

4.  MINING    AND    MILLING    PURPOSES.     The    term 
"mining  and  milling  purposes"  means  more  than  a 
colorable  use.13    The  land  must  be  used  in  good  faith 
in  connection  with  the  ostensible  purpose  for  which  it 
was  located.14     Whether  the  land  is  so   "used  and 
occupied"  15  is  a  question  of  both  law  and  fact.16 

5.  WHO  MAY  LOCATE.    The  right  to  locate  a  mill- 
site  is  limited  to  the  proprietor  of  a  non-contiguous 
vein  or  lode  or  the  owner  of  a  quartz  mill  or  reduction 
works,  not  owning  a  mine  in  connection  therewith.17 

6.  LOCATION.     In  the  ordinary  sense  a  mill-site  is 
not  a  mining  claim  1S  although  in  the  case  of  a  town- 
site  patent  it  was  held  to  be  within  the  term  "any 
mining    claim    or    possession    held    under    existing 
laws."  19     Other  than  in  the  matter  of  discovery  it 
should  be  located  in  the  same  manner  as  a  placer 
claim.20 

7.  ANNUAL    EXPENDITURE.     There  is  no    specific 
time  within  which  a  mill-site  shall  commence  to  be 
used  as  such  21  nor  is  annual  expenditure  required 
thereon.22 

8.  PATENT.    A  mill-site  is  subject  to  patent  inde- 
pendently or  in  conjunction  with  one  or  more  mining 
claims  23  upon  proof  of  its  non-mineral  character  24 


§  116]  MILL-SITES.  155 

and  its  reasonable  use  for  mining,  milling  or  smelting 
purposes.25 

1.  Rev.  Stats.,  §  2337. 

2.  Yankee  Mill-site,  37  L.  D.  674. 

3.  Keystone  Co.  v.  Nev.,   15  L.  D.   259;  Mongrain  v.  N.   P.  R. 

Co.,  18  L.  D.   105. 

4.  Hamburg  Co.  v.  Stephensin,  17   Nev.  450. 

5.  Rev.  Stats.,  §  2337. 

The  mining  act  of  California  provides  that:  The 
proprietor  of  a  vein  or  lode  claim  or  mine,  or  the 
owner  of  a  quartz  mill  or  reduction  works,  or  any  per- 
son qualified  by  the  laws  of  the  United  States,  may 
locate  not  more  than  five  acres  of  non-mineral  land  as 
a  mill  site.  Such  location  shall  be  made  in  the  same 
manner  as  hereinbefore  required  for  locating  placer 
claims.  C.  C.  S.,  1426J.  The  locator  of  a  mill-site 
claim  or  location  shall,  within  thirty  days  from  the 
date  of  his  location,  record  a  true  copy  of  his  location 
notice  with  the  county  recorder  of  the  county  in  which 
such  location  is  situated,  for  which  service  the  re- 
corder shall  receive  a  fee  of  one  dollar.  C.  C.,  §  1426k. 

6.  Cyprus  Mill-site,  6  L.  D.  706. 

7.  Two  Sisters  Lode,  7  L.  D.  557;    see  U.  S.  v.  Iron  Co.,  128 

U.  S.  673,  E.  M.  Palmer,  38  L.  D.  294. 

8.  Chas.  Lennig,  5  L.  D.  190. 

9.  Alaska  C.  Co.,  32  L.  D.  128;  Brick  Pomeroy,  34  L.  D.   320; 

Hard  Cash,  34  L.  D.  325. 

10.  J.   B.   Hoggin,    2  L.   D.   755;   see   Heckla  Co.,   12   L.   D.   75; 

Alaska  C.  Co.,  ante. 

11.  Heckla  Co.,  ante. 

12.  Cleary  v.  Skiffich,  28  Colo.  362. 

13.  Hard  Cash,  ante. 

14.  Hartman  v.  Smith,  7  Mont.  19. 

15.  Rev.   Stats.,  §  2337. 

16.  S.  P.  Mines  v.  Valcalda,  79  Fed.   886. 

17.  Rev.  Stats.,  §  2337. 

18.  Helena  Co.  v.  Dailey,  36  L.  D.  144;  Cleary  v.  Skiffich,  ante. 

19.  Hartman  v.  Smith,  ante;  see  Cleary  v.  Skiffich,  ante. 

20.  See  C.  C.  §  1426J;  Burns  v.  Clark,  133  Cal.  634. 

21.  Valcalda  v.  S.  P.  Mines,  86  Fed.  91. 

22.  Alaska  C.  Co.,  ante. 

23.  Rev.  Stats.,  §2337;    see  Cleary  v.  Skiffich,  ante. 

24.  Hard  Cash,   ante. 

25.  Valcalda  v.  S.  P.  Mines,  ante;  Cyprus  mill-site,  ante;  Two 

Sisters  Lode,  ante;  Le  Neve  Mill-site,  9  L.  D.  460;  Mint 
Lode,  12  L.  D.  624;  Alaska  C.  Co.,  ante. 


CHAPTER  XVIII. 

PLACER  CLAIMS. 

§  119.  In  general — location  rights — known  vein — subsequent 
discovery — conflicting  locations — area  of  placer  loca- 
tions— discovery,  marking  and  annual  expenditure  — 
patent — joint  entry — effect  of  excluding  known  vein — 
limitation. 


156  PLACER   CLAIMS.  [Ch.  18 

§  120.  Petroleum  oil  claims — rights  preserved — withdrawals — 
withdrawals  in  California — the  power  of  the  President 
— act  of  June  25,  1910 — construction  of  statute — pro- 
tection under  saving  clause — opinion  of  the  writer — 
peculiar  conditions — questions  arising  from  conditions 
— conflict  of  authority — established  law — forcible  entry 
and  detainer- — possessio  pedis — conveyance  before  dis- 
covery— departmental  ruling — confusion  in  land  titles 
— rule  of  property — remedial  legislation — ambiguity  in 
statute — construction  of  statute — validity  of  with- 
drawals— discovery — insufficient  discovery — possession 
while  making  discovery — good  faith — single  discovery 
— scripping. 

§  120a.  Natural    gas — definition. 

§  121.  Mining  for  oil — no  limit — unlawful  drainage — posses- 
sion of  land  not  possession  of  oil — nuisance — Cali- 
fornian  provision — commencing  operations — diligence 
— test  well — partnership —  limitation —  partition — dam- 
ages. 

§  121a.  Recent  Californian  legislation. 

§  122.  Oil-land  leases — implied  covenants — forfeiture — vested 
right — paying  quantity — taxation. 

§  123.  Hydraulic  claims — restriction — constitutionality  of  act 
— mining  without  restriction. 

§  124.  Dredge  claims — in  general — location. 

§  124a.  Recent    Californian    legislation — uplands. 

§125.  Stone  claims  —  in  general  —  character  of  location — 
timber  and  stone  act — agricultural  entry — sale  by 
entryman — return  of  fees. 

§  126.  Salt  claims — character  of  deposit — limitation — nitrate 
and  borate  lands. 

§  127.  Tailings — deposition  of  tailings. 

§119.  In  General.  The  term  "placer  claim" 
means  ground  that  includes  valuable  deposits  not  in 
place,  that  is  not  fixed  in  rock.1  It  is  a  location  of  a 
tract  of  land  for  the  sake  of  loose  deposits  of  mineral 
upon  or  near  the  surface.2 

2.  LOCATION  RIGHTS.    A  valid  placer  location  con- 
fers a  qualified  right  to  the  surface,3  although  no  per- 
son can  legally  enter  thereon  and  prospect  for  any 
vein  or  lode  therein  without  the  consent  of  the  placer 
claimant.4    It  also  confers  the  right  to  all  placer  de- 
posits and  to  all  veins  or  lodes  not  known  to  exist  at 
the  time  of  the  location  :5  except  where  the  claim  was 
located  prior  to  the  act  of  1872  "known  veins"  within 
its  area  are  included  therein.6 

3.  KNOWN  VEIN.    A  vein  or  lode  is  not  known  to 
exist  within  the  location  by  the  mere  existence  of  out- 


§  119]  PLACER  CLAIMS.  157 

croppings  7  but  by  ascertainment  of  its  mineral  value  8 
or  by  exploration  and  common  repute.9 

4.  SUBSEQUENT    DISCOVERY.     The   subsequent  dis- 
covery of  veins  or  lodes  within  a  placer  location  and 
their  successful  working  does  not  affect  the  good  faith 
of  the  placer  claimant.     That  must  be  determined  by 
what  was  known  at  the  time  of  the  location.10 

4a.  CONFLICTING  LOCATIONS.  No  reason  can  be  sug- 
gested for  permitting  a  junior  locator  of  a  placer 
claim  to  lay  his  lines  across  a  claim  already  located.11 

A  known  vein  or  lode  may  be  located  by  another 
party  either  before  or  after  the  issuance  of  the  placer 
patent,  if  not  included  therein  12  or  if  not  held  by  the 
placer  claimant  under  a  separate  lode  location.13 

5.  AREA  OF  PLACER  LOCATION.     A  placer  location 
must  not  exceed  20  acres  for  an  individual 14  or  a 
corporation  15  nor  exceed  160  acres  for  an  association 
of  not  less  than  eight  bona  fide  locators.16 

6.  DISCOVERY,   MARKING   AND   ANNUAL   EXPENDI- 
TURE.   Discovery,  marking  of  the  location  and  the  an- 
nual expenditure  thereon  are  the  same  for  each  sep- 
arate location,  irrespective  of  its  size.17 

7.  PATENT.     Placer  claims  are  subject  to  patent 
under  like   circumstances  and   conditions  and  upon 
similar  proceedings  as  are  provided  for  lode  claims.18 

8.  JOINT  ENTRY.    Two  or  more  persons  or  associa- 
tions of  persons  having  contiguous  placer  claims  of 
any  size  although  such  claims  may  be  less  than  10 
acres  each  may  make  joint  entry  thereof.19 

9.  EFFECT  OF  EXCLUDING  KNOWN  VEIN.    A  placer 
claimant  when  in  possession  of  a  known  vein  within 
the  limits  of  his  location  must  include  it  within  his 
placer   application   for   patent,    otherwise   it  is   con- 
clusively assumed  he  has  no  right  thereto.20 

10.  LIMITATION.     A  vein  or  lode  claim  within  a 
placer  location  is  limited,  for  patent,  to  25  feet  on 
each  side  of  the  vein  or  lode  claim.21 


158  PLACER   CLAIMS.  LCh.  18 

See  §  99-8,  ante. 

1.  IT.  S.  v.  Iron  Co.,  128  U.  S.  673. 

2.  Clipper  Co.  v.  Eli  Co.,  194  U.  S'.  220;  see  Webb  v.  American 

Co.,  157  Fed.  203;  Henderson  v.  Fulton,  35  L,  D.  652; 
E.  M.  Palmer,  38  L.  D.  294. 

3.  Rev.   Stats.,   §2333;   Mt.   Rosa  Co.   v.   Palmer,   26  Colo.   56; 

see  Clipper  Co.  v.  Eli  Co.,  ante;  Mutchmor  v.  McCarty, 
149  Cal.  603.  See  also  U.  S.  v.  Rizzinelli.  182  Fed.  675. 

4.  Clipper  Co.  v.  Eli  Co.,  ante. 

5.  See  note  3,  ante. 

6.  Cranes  Gulch  Co.  v.  Scherrer,  134  Cal.  350. 

7.  U.  S.  v.  Iron  Co.,  ante;  Brownfield  v.  Bier,  15  Mont.  403. 

8.  Migeon  v.  Mont.  Cent.  Co.,  77  Fed.  249;  see  §50-34,  ante. 

9.  Iron  Co.  v.  Mike  &  Starr  Co.,   143  U.   S.   431;    see  §50-34, 

ante;  see  note  20,  post. 

10.  U.  S.  v.  Iron  Co.,  ante;  Clipper  Co.  v.  Eli  Co.,  ante. 

11.  Stenfjeld  v.  Espe,  171  Fed.  825. 

12.  Reynolds  v.  Iron  Co.,  116  U.  S.  687;  Mt.  Rosa  Co.  v.  Palmer, 

ante. 

13.  Noyes  v.  Clifford,   37  Mont.  138. 

14.  Rev.  Stats.,  §2331;  see  §170,  post. 

15.  Igo  Bridge  Ex.  Placer,   38  L.  D.  281;  see  Gird  v.  Cal.  Oil 

Co.,  60  Fed.  531. 

16.  Rev.  Stats.,  §2330;  see  §170,  post. 

17.  Miller  v.  Chrisman,  140  Cal.  440;  McDonald  v.  Mont.  Wood 

Co.,  14  Mont.  88;  Whiting  v.  Straup,  17  Wyo.  1;  Moffat 
v.  Blue  River  Co.,  33  Colo.  142.  Discovery  work  does 
not  mean  the  doing  of  assessment  work.  It  does  not 
mean  the  pursuit  of  capital  to  prosecute  the  work.  It 
does  not  mean  any  attempted  holding  by  cabin,  lumber 
pile  or  unused  derrick.  It  means  the  diligent,  con- 
tinuous prosecution  of  the  work  with  the  expenditure 
of  whatever  money  may  be  necessary  to  the  end  in 
view.  McLemore  v.  Express  Co.,  158  Cal.  559;  see 
Bishop  v.  Baisley,  28  Or.  119. 

The  Californian  Mining  Act  provides  that  "The  loca- 
tion of  a  placer  claim  shall  be  made  in  the  following 
manner:  By  posting  thereon,  upon  a  tree,  rock  in 
place,  stone,  post  or  monument,  a  notice  of  location, 
containing  £he  name  of  the  claim,  name  of  locator  or 
locators,  date  of  location,  number  of  feet  or  acreage 
claimed,  such  a  description  of  the  claim  by  reference 
to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim  located,  and  by  marking  the  bound- 
aries so  that  they  may  be  readily  traced;  provided,  that 
where  the  United  S'tates  survey  has  been  extended 
over  the  land  embraced  in  the  location,  the  claim 
may  be  taken  by  legal  subdivisions  and  no  other  ref- 
erence than  those  of  said  survey  need  be  required  and 
the  boundaries  of  a  claim  so  located  and  described 
need  not  be  staked  or  monumented.  The  description 
by  legal  subdivisions  shall  be  deemed  the  equivalent 
of  marking.  C.  C.,  §  1426c. 

A  true  copy  of  the  notice  posted  must  be  recorded 
in  the  office  of  the  proper  County  Recorder  within  30 
days  after  posting  such  notice.  C.  C.  §  1426d. 

18.  Rev.   Stats.,   §2329;   see   §211-2,   post. 

19.  Rev.  Stats.,  §  2330. 

20.  Reynolds   v.   Iron    Co.,    ante;    Noyes   v.    Clifford,    ante.      A 

quartz   claim   upon   a   patented   placer   depends   for   its 


§  120]  PETROLEUM   OIL  CLAIMS.  159 

ultimate  validity  and  value  upon  its  claimant's  ability 
to  prove  that  at  the  time  application  for  patent  was 
made  the  placer  claim  contained  a  known  vein.  Kift 
v.  Mason,  42  Mont.  232;  see  Iron  Co.  v.  Campbell,  135 
U.  S.  286. 
21.  Rev.  Stats.,  §2333;  Noyes  v.  Clifford,  ante. 

§  120.  Petroleum  Oil  Claims.  Lands  chiefly  val- 
uable for  petroleum  or  other  mineral  oils  are  subject 
to  location  and  patent  under  the  provisions  of  the  law 
relating  to  placer  claims,1  unless  within  area  tempo- 
rarily withdrawn  by  executive  order  previous  to  or 
under  the  provisions  of  the  Act  of  Congress,  approved 
June  25,  1910.2 

2.  RIGHTS  PRESERVED.     The  rights  of  any  person 
who,  at  the  date  of  any  order  of  withdrawal  is  a  bona 
fide  occupant  or  claimant  of  oil  or  gas-bearing  land, 
and  who,  at  such  date,  is  in  diligent  .prosecution  of 
work  leading  to  discovery  of  oil  or  gas,  is  not  affected 
or  impaired  by  such  order,  so  long  as  he  shall  continue 
in  the  diligent  prosecution  of  such  work.3 

3.  WITHDRAWALS.     Withdrawals  are  either  a  law 
made  or  a  joint  resolution  passed  by  Congress,  or  they 
are  a  proclamation  by  the  President,  or  an  order  is- 
sued  by   officers    of   the   land   department   or   other 
proper  officer.     Thereby  public  lands  are  withdrawn 
from  location,  sale  and  entry  under  the  laws  affecting 
the   public    domain.      They   are   sometimes   made   in 
recognition  of  what  is  about  to  occur  and  sometimes 
in  recognition  of  what  has -occurred.4    A  withdrawal 
by  proclamation  of  the  President  takes  effect  from  its 
date.     An  executive  withdrawal    operates    from    the 
time  it  is  made  or  when  received  at  the  local  land 
office,  as  its  terms  may  dictate.5 

4.  WITHDRAWALS   IN   CALIFORNIA.     On  September 
27,  1909,  by  order  of  the  President,  the  withdrawal 
affecting  the  bulk  of  the  Calif ornian  oil  fields  was 
made.  Whether  this  withdrawal  is  valid  or  not  is  a 
much  mooted  question.    In  the  opinion  of  the  writer, 


160  PLACER   CLAIMS.  [Ch.  18 

the   President   had  no   authority   to   withdraw   such 
lands.6 

5.  THE  POWER  OF  THE  PRESIDENT.    The  laws  of  the 
United  States  provide  that  land  chiefly  valuable  for 
mineral  shall  be  disposed  of  in  a  certain  way.    A  with- 
drawal of  lands  from  entry  is  a  repeal  or  suspension 
of  this  statute  as  far  as  the  withdrawn  lands  are  con- 
cerned, and  it  is,  of  course,  obvious  that  it  is  beyond 
the  power  of  the  President  to  repeal,  or  to  suspend 
any  statute  unless  expressly  or  impliedly  given  that 
authority  in  the  statute  itself.7 

6.  ACT  OF  JUNE  25,  1910.    In  order  to  cure  such 
want   of   authority   the    act   of   June   25,  1910,  was 
passed,  expressly  enabling  the  President  to  make  with- 
drawals of  lands  containing  oil,  gas,  phosphates  and 
coal.8 

7.  CONSTRUCTION   OF    STATUTE.     Numerous    ques- 
tions may  arise  over  the  construction  of  this  statute. 
It  has  not  yet  been  passed  upon  by  the  courts,  and  the 
opinions  here  expressed  are  solely  those  of  the  writer. 

8.  PROTECTION  UNDER   SAVING   CLAUSE,     (a)  The 
first  question  is,  Who  are  protected  under  the  saving 
clause  of  said  statute?    The  statute  requires  continu- 
ous and  actual  operation  on  the  land;  hence  the  per- 
formance of  the  annual  assessment  work,  the  erection 
of  houses,  the  building  of  roads  or  derricks  unless  fol- 
lowed by  the  commencement  and  prosecution  of  work 
would  not  be  sufficient.9     If,  however,  a  road  or  a. 
water  line  were  necessary  for  operation,  and  was  being 
constructed  at  the  time  of  the  withdrawal,  and,  after 
withdrawal,  was  diligently  carried  to  completion  and 
the  actual  work  of  drilling  diligently  begun  and  car- 
ried on  thereafter,  it  would  be  sufficient. 

(b)  If  the  withdrawals  prior  to  this  statute  wrere 
invalid,  of  course,  the  diligent  prosecution  of  work  is 
only  to  be  considered  at  the  time  of  the  subsequent 
withdrawal,  and  if  work  were  being  diligently  prose- 


§  120]  PETROLEUM   OIL  CLAIMS.  161 

cuted  when  the  subsequent  withdrawals  were  made, 
the  situation  at  the  time  of  the  earlier  and  invalid 
withdrawals  is  immaterial. 

(c)  If  the  withdrawals  prior  to  the  statute  were 
valid,  and  the  locator  was  not  at  work  at  that  time,  but 
was  at  work  when  the  withdrawal  was  made  of  the 
same  land  after  the  passage  of  the  statute,  what  is 
the  situation? 

9.  OPINION  OP  THE  WRITER.    In  the  opinion  of  the 
writer,  the  locator  is  protected  if  his  location  was  made 
prior   to   the   first  withdrawal.     The   statute   is   dis- 
junctive, it  protects  everyone  at  work  at  the  time  of 
any  withdrawal  "heretofore  or  hereafter  made."     If 
the  President  made  a  withdrawal  before  the  passage 
of  the  Act,  and  again  after  the  passage  of  the  Act, 
and  the  locator  is  at  work  at  the  time  of  the  second 
withdrawal,  he  is  certainly  at    work    at    withdrawal 
"hereafter"  made. 

The  reason  we  confine  it  to  locations  prior  to  the 
first  withdrawal  is  again  based  on  the  peculiar  phrase- 
ology of  the  statute  which  ex  industria  recites,  "This 
•Act  shall  not  be  construed  as  a  recognition,  abridg- 
ment or  enlargement  of  any  asserted  rights  or  claims 
initiated  u'pon  any  oil  or  gas-bearing  lands  after  any 
withdrawal  of  such  lands  made  prior  to  the  passage 
of  this  Act,"  thereby  clearly  taking  locations  after  the 
first  withdrawal,  provided,  of  course,  it  was  valid,  out 
of  the  protection  of  the  statute. 

10.  PECULIAR  CONDITIONS.     Although  "oil  lands" 
may  be  located  as  placer  claims  a  complication  has 
arisen  in  applying  the  law  relating  to  such  locations 
which  is  not  of  very  much  importance  in  mining  for 
solid  minerals.    To  constitute  a  valid  location  of  either 
class  there  must  be  a  discovery  of  mineral.     In  min- 
ing for  solid  minerals  the  discovery  ordinarily  follows 
closely  after  or  may  even  precede  the  location.     On 
supposed  oil  lands  it  is  often  a  matter  of  years  from 


162  PLACER   CLAIMS.  [Ch.  18 

the  date  of  the  location  to  the  date  of  actual  dis- 
covery. During  all  this  time  no  vested  rights  have 
accrued  to  the  locator  as  against  the  government,  and 
two  very  vital  and  complicated  questions  have  arisen. 

11.  QUESTIONS   ARISING   FROM    CONDITIONS.      The 
first  of  these  questions  is  to  what  extent  is  the  location 
protected  against    third    parties  pending  discovery? 
The  second  question  is  can  the  eight  locators  of  an 
association  claim  convey  their  interests  to  one  person 
prior  to  discovery,  without  destroying  the  validity  of 
the  location? 

12.  CONFLICT  OF  AUTHORITY.     On  both  the  above 
points  there  was  such  a  hopeless  conflict  of  authority 
that  remedial  legislation  was  absolutely  essential. 

13.  ESTABLISHED  LAW.     There  is,  of  course,  the 
general  and  well  established  proposition  of  mining  law 
that  while  a  locator  is  in  possession,  at  work  in  good 
faith,  no  person  can  make  a  valid  location  against  him 
by  a  forcible,  surreptitious  or  clandestine  entry. 

14.  FORCIBLE  ENTRY   AND   DETAINER.     The  above 
proposition    can   not    only   be    established   by   well 
founded  authorities  in  mining  law,  but  in  default  of 
such  decisions  could  be  maintained  under  the  forc- 
ible entry  and  detainer  statutes.    Up  to  the  decision 
in  Hanson  v.  Craig  (170  Fed.  62),  diligent  work  at 
any  part  of  the  location  protected  the  whole  claim. 

15.  POSSESSIO  PEDIS.    In  the  case  just  cited,  how- 
ever, the  court  confined  the  locator  to  his  actual  pos- 
session which   effectually  destroys  the  force  of  the 
former  decisions  by  confining  the  oil  land  operator  to 
such  a  small  portion  of  land  as  to  render  his  claim 
practically  valueless. 

16.  CONVEYANCE    BEFORE    DISCOVERY.     The  ques- 
tion of  the    effect  of    conveyance    before    discovery 
within  an  association  oil  placer  claim  did  not  arise 
until  the  year  1909.    The  courts  have  repeatedly  and 
consistently  recognized  the  rights  of  the  eight  locators 


§  120]  PETROLEUM   OIL  CLAIMS.  163 

to  vest  all  their  interests  in  one  person  prior  to  dis- 
covery 10  and  the  land  department  has  issued  patents 
for  thousands  of  acres  of  land  when  this  condition 
existed.103- 

17.  DEPARTMENTAL  EULING.     In  1909,  the  Secre- 
tary of  the  Interior  abandoned  the  prior  course  of  con- 
duct of  the  land  department  and  held  that  if  the 
eight  locators  conveyed  before  discovery  to  one  per- 
son the  location  no  longer  carried  160  acres  upon  sub- 
sequent discovery,  but  only  20  acres.11 

18.  CONFUSION  IN  LAND  TITLES.    The  question  of 
reversing  the  above  decision  has  been  very  vigorously 
urged  upon  the  Secretary,  owing  to  the  tremendous 
confusion  in  land  titles  resulting  therefrom ;  but  with- 
out effect. 

19.  EULE    OF    PROPERTY.     The  expression  of  the 
Secretary's  opinion  in  that  case  was  not  only  unneces- 
sary to  the  decision  but  was  contrary  to  prior  court 
decisions  and  reversed  the  practice  of  the  land  depart- 
ment.    The  contrary  has  long  been  established  as  a 
rule  of  property  and  should  be  allowed  to  stand  for 
that  reason  even  if  it  were  conceded  that  the  strict 
literal  construction  of  the  statute  as  laid  down  in  the 
case  last  cited  were  correct. 

19a.  REMEDIAL  LEGISLATION.  The  doctrine  of  the 
H.  H.  Yard  case  (38  L.  D.  59)  and  the  Bakersfield 
Fuel  &  Oil  Company's  case.  (39  L.  D.  460)  has  been 
definitely  reversed  by  the  Act  of  March  2,  1911,12  in 
so  far  as  the  lands  claimed  contain  petroleum,  mineral 
oil  or  natural  gas.  In  all  such  cases,  therefore,  a  con- 
veyance by  the  eight  locators  of  an  association  claim 
to  a  lesser  number,  even  though  prior  to  discovery, 
does  not  defeat  the  right  to  patent  160  acres  on  a 
single  discovery  therein.  All  other  placer  locations 
still  remain  subject  to  the  limitation  announced  in 
the  Yard  case. 


164  PLACER   CLAIMS.  [Ch.  18 

19b.  AMBIGUITY  IN  STATUTE.  The  recent  statute, 
just  referred  to,  is  somewhat  ambiguous.  It  only  ap- 
plies where  "lands  were  not  at  the  time  of  the  incep- 
tion of  development  on  or  under  such  claim  with- 
drawn from  mineral  entry."  The  words  "inception  of 
development"  will  necessarily  be  construed  in  connec- 
tion with  the  said  enabling  act  of  June  25,  1910,  so  as 
to  mean  the  beginning  of  diligent  prosecution  of  work 
leading  to  discovery  of  oil. 

19c.  CONSTRUCTION  OF  STATUTE.  The  phrase 
"withdrawn  from  mineral  entry"  will  be  the  basis  of 
vigorous  controversy  with  the  land  department,  as  to 
whether  it  refers  to  withdrawals  made  prior  to  said 
enabling  act,  or  only  to  withdrawals  made  thereafter 
and  in  accordance  therewith. 

19d.  VALIDITY  OF  WITHDRAWALS.  On  final  an- 
alysis the  decision  depends  upon  the  validity  of  the 
earlier  withdrawal.  If  the  withdrawal  was  beyond 
the  power  of  the  President,  it  cannot  be  regarded  for 
any  purpose. 

20.  DISCOVERY.    In  making  the  location  the  locator 
necessarily  takes  into    consideration    surface    indica- 
tions, geological  formations,  proximity  to  known  mines 
or  wells  producing  oil.13 

21.  INSUFFICIENT  DISCOVERY.     The  fact  that  sur- 
face indications  of  petroleum  oil  or  the   geological 
formation  of  the  country  may  be  such  as  scientific 
research  and  practical  experience  has  shown  to  be 
likely  to  lead  to  petroleum  oil,  in  paying  quantities, 
does  not  constitute  a  sufficient  "discovery"  within  the 
meaning  of  the  law.    In  order  to  support  the  location 
oil  must  be  actually  discovered  within  the  limits  of 
the  location.     Neither  surface  indications  of  the  ex- 
istence of  oil  therein,  however  strong,  nor  the  exist- 
ence  of  oil  upon  adjoining  lands  is  sufficient  dis- 
covery.14 


§  120]  PETROLEUM   OIL  CLAIMS.  165 

22.  POSSESSION  WHILE  MAKING  DISCOVERY.    While 
the  locator,  who  has  made  his  location  in  good  faith  is 
prospecting  it  for  minerals,  complies  with  the  law  as  to 
expenditures   and  is  in   actual   possession,   the  land 
covered  by  his  location  is  not  open  to  location  by 
others.15 

23.  GOOD  FAITH.     The  location  must  be  made  in 
good  faith  and  the  locator  must  use  proper  diligence 
to  make  discovery  of  oil.    If  he  does  not  do  so  he  will 
lose  his  rights  under  his  location  to  parties  who  may 
afterwards,  in  good  faith,  acquire  rights.16 

24.  SINGLE  DISCOVERY.    A  single  discovery  of  oil  is 
sufficient  when  made  in  a  well  common  to  contiguous 
oil  claims,  provided  the  well  does  not  deflect  in  its 
downward  course.17 

25.  SCRIPPING.    Adverse  rights  can  be  acquired  by 
"scripping"  only  after  the  selector  or  "scripper"  has 
shown  by  affidavit,  filed  in  the  proper  land  office,  that 
the  land  located  or  selected  by  him  is  not  in  any  man- 
ner occupied  adversely  to  him.    That  opportunity  has 
been  given  to  prove  the  mineral  character  of  the  land 
by  notice  of  the  application  published  in  a  newspaper 
nearest  to  the  claim,  posted  upon  the  land  included  in 
the  selection  and  upon  each  and  every  non-contiguous 
tract  thereof.18 

1.  29    Stats.    526.      All    lands    containing   petroleum    are    not 

subject  to  location,  but  only  such  as  are  "chiefly  valu- 
able therefor."  This,  is  a  subject  of  proof.  If  the  oil 
is  in  such  limited  quantities  that  it  cannot  be  worked 
at  a  profit,  it  is  not  "chiefly  valuable"  for  its  oil.  Bay 
v.  Oklahoma  Co.,  13  Okla.  425.  Petroleum  is  a  mineral 
substance  obtained  from  the  earth  by  the  process  of 
mining1,  and  the  land  from  which  it  is  obtained  may 
with  propriety  be  called  mining  land.  People  v.  Bell, 
237  111.  332.  That  gilsonite  should  be  located  as  a  "lode 
claim,"  see  Webb  v.  American  Co.,  157  Fed.  203.  For 
boring  of  oil  and  salt  wells  in  Washington,  see  Pierce's 
Wash.  Code,  §  6454. 

2.  Enabling   Act.      The   President   may,    at   any   time   in   his 

discretion  temporarily  withdraw  from  settlement, 
location,  sale,  or  entry  any  of  the  public  lands  of  the 
United  States  including  the  District  of  Alaska  and  re- 
serve the  same  for  water-power  sites,  irrigation,  clas- 
sification of  lands,  or  other  public  purposes  to  be  speci- 


166  PLACER   CLAIMS.  [Ch.  18 

fied  in  the  orders  of  withdrawals,  and  such  with- 
drawals or  reservations  shall  remain  in  force  until  re- 
voked by  him  or  by  an  Act  of  Congress. 

§  2.  That  all  lands  withdrawn  under  the  provisions 
of  this  Act  shall  at  all  times  be  open  to  exploration, 
discovery,  occupation,  and  purchase,  under  the  mining 
laws  of  the  United  States,  so  far  as  the  same  apply  to 
minerals  other  than  coal,  oil,  gas,  and  phosphates: 
Provided,  That  the  rights  of  any  person  who,  at  the 
date  of  any  order  of  withdrawal  heretofore  or  here- 
after made,  is  a  bona  fide  occupant  or  claimant  of  oil 
or  gas-bearing  lands,  and  who,  at  such  date,  is  in  dili- 
gent prosecution  of  work  leading  to  discovery  of  oil 
or  gas,  shall  not  be  affected  or  impaired  by  such  order, 
so  long  as  such  occupant  or  claimant  shall  continue  in 
diligent  prosecution  of  said  work:  And  provided  fur- 
ther, That  this  Act  shall  not  be  construed  as  a  recog- 
nition, abridgment,  or  enlargement  of  any  asserted 
rights  or  claims  initiated  upon  any  oil  or  gas-bearing 
lands  after  any  withdrawal  of  such  lands  made  prior 
to  the  passage  of  this  Act:  And  provided  further,  That 
there  shall  be  excepted  from  the  force  and  effect  of 
any  withdrawal  made  under  the  provisions  of  this  Act 
all  lands  which  are,  on  the  date  of  such  withdrawal, 
embraced  in  any  lawful  homestead  or  desert-land 
entry  theretofore  made,  or  upon  which  any  valid  set- 
tlement has  been  made  and  is  at  said  date  being  main- 
tained and  perfected  pursuant  to  law;  but  the  terms 
of  this  proviso  shall  not  continue  to  apply  to  any  par- 
ticular tract  of  land  unless  the  entryman  or  settler 
shall  continue  to  comply  with  the  law  under  which 
the  entry  or  settlement  was  made;  And  provided  fur- 
ther, That  hereafter  no  forest  reserve  shall  be  created, 
nor  shall  any  additions  be  made  to  one  heretofore 
created  within  the  limits  of  the  States  of  Oregon, 
Washington,  Idaho,  Montana,  Colorado,  or  Wyoming, 
except  by  Act  of  Congress. 

§  3.  That  the  Secretary  of  the  Interior  shall  report 
all  such  withdrawals  to  Congress  at  the  beginning  of 
its  next  regular  session  after  the  date  of  the  with- 
drawals, 36  Stats.  847.  As  to  the  effect  of  this  act 
upon  coal  land  selections,  see  Milton  S.  Gunn,  39  L.  D. 
561. 

3.  See  note  2,  ante;  St.  Paul  Ry.  Co.  v.  Keslik,  19  L.  D.  275. 

4.  Hans  Oleson,  28  L.  D.  25. 

5.  Hiram  C.  Smith,  33  L.  D.   677;   see  N.  P.  R.  Co.  v.  Pettit, 

14  L.  D.  591;    U.  P.  R.  Co.  v.  Peterson,  28  L.  D.  32. 

6.  See  Lockhart  v.  Johnson,  181  U.  S.  516;    Gibson  v.  Ander- 

son 131  Fed.  39;  U.  S.  v.  Blendauer,  122  Fed.  703;  O.  & 
C.  R.  R.  Co.  v.  Willamette  Co.,  26  L.  D.  546. 

7.  Gibson  v.  Anderson,  ante;  see  notes  2  and  6,  ante. 

8.  See  note  2,  ante.     See  Instructions,  39  L.  D.  544. 

9.  McLemore  v.  Express  Co.,  158  Cal.  559.     No  hard  or  fast 

rule  can  be  established  fixing  the  amount  of  work 
which  must  be  done  by  the  occupant  prosecuting  the 
work  leading  to  the  discovery  of  oil  or  gas.  Each 
case  must  rest  upon  its  own  showing  of  diligence  when 
application  for  patent  is  filed.  The  chief  of  field  di- 
vision should  be  advised  of  all  such  applications  and 
should  be  prepared  to  submit  showing,  if  possible,  be- 


§  120]  PETROLEUM   OIL  CLAIMS.  167 

fore  the  issuance  of  final  certificate  of  entry.  Instruc- 
tions, 39  L.  D.  544. 

10.  Miller  v.  Chrisman,  140  Cal  440;  s.  c.  197  U.  S.  313;  Week 

v.  Snook,   144  Cal.   139;  Whiting  v.   Straup,   17  Wyo.   1; 
but  see  H.  H.  Yard,  38  L.  D.  59. 
lOa.   See  Bakersfield  Fuel  Oil  Co.,  39  L.  D.  460. 

11.  H.   H.   Yard,   ante;   see,   also,   Bakersfield  Fuel   &  Oil   Co., 

ante. 

12.  Remedial   Act.     An   act   to   protect   the   locators    in    good 

faith  of  oil  and  gas  lands  who  shall  have  effected 
an  actual  discovery  of  oil  or  gas  on  the  public  lands 
of  the  United  States,  or  their  successors  in  interest. 

That  in  no  case  shall  patent  be  denied  to  or  for  any 
lands  heretofore  located  or  claimed  under  the  mining 
laws  of  the  United  States  containing  petroleum,  min- 
eral oil,  or  gas  solely  because  of  any  transfer  or 
assignment  thereof  or  of  any  interest  or  interests 
therein  by  the  original  locator  or  locators,  or  any  of 
them,  to  any  qualified  persons  or  person,  or  corpora- 
tion, prior  to  discovery  of  oil  or  gas  therein,  but  if 
such  claim  is  in  all  other  respects  valid  and  regular, 
patent  therefor,  not  exceeding  160  acres  in  any  one 
claim  shall  issue  to  the  holder  or  holders  thereof,  as 
in  other  cases:  Provided,  however,  That  such  lands 
were  not  at  the  time  of  inception  of  development  on 
or  under  such  claim  withdrawn  from  mineral  entry. 
36  Stats.,  p.  1015. 

13.  Weed   v.    Snook,    ante;     Olive   Land   Co.   v.   Olmstead,    103 

Fed.  568;  see  Biglow  v.  Conradt,  159  Fed.  868;  see  note 
2,  ante. 

14.  Nev.  Sierra  Co.  v.  Home  Oil  Co.,  98  Fed.  673;  Olive  Land 

Co.  v.  Olmstead,  ante;  Miller  v.  Chrisman,  ante.  It 
is  the  common  experience  of  persons  of  ordinary  in- 
telligence that  petroleum  in  valuable  quantities  is  not 
found  on  the  surface  of  the  ground  nor  is  it  found  in 
paying  quantities  seeping  from  the  earth.  Valuable 
oil  is  found  by  drilling  or  boring  into  the  interior  of 
the  earth,  and  either  flows  or  is  pumped  to  the  surface, 
and  until  some  body  or  vein  has  been  discovered  from 
which  the  oil  can  be  brought  to  the  surface,  it  cannot 
be  considered  of  sufficient  importance  to  warrant  a 
location  under  the  mineral  laws.  Bay  v.  Oklahoma 
Co.,  ante.  The  disclosure  of  a  stratum  of  bituminous 
sand  stone  or  shale  from  which  a  small  quantity  of  oil 
seeps,  not  sufficient  to  impress  the  land  with  any 
value  for  mining  purposes,  does  not  constitute  a  suffi- 
cient discovery  to  support  a  valid  mining  location. 
So.  Western  Co.  v.  A.  &  P.  R.  Co.,  39  L.  D.  335.  To 
constitute  a  discovery  there  must  be  some  thing  more 
than  conjecture,  hope  or  indications.  New  England 
Co.  v.  Congdon,  152  Cal.  211. 

15.  Weed  v.  Snook,  ante.     One  who  in  good  faith  makes  his 

location,  remains  in  possession,  and  with  due  diligence 
prosecutes  his  work  toward  a  discovery,  is  fully  pro- 
tected against  all  form  of  forcible,  fraudulent,  surrep- 
titious or  clandestine  entries  or  intrusions  upon  his 
possession.  Such  entry  must  always  be  peaceable, 
open  and  above  board,  and  made  in  good  faith,  or  no 
right  can  be  founded  upon  it.  McLemore  v.  Express 
Co.,  ante. 


168  PLACER   CLAIMS.  [Ch.  18 

16.  Phillips  v.  Brill,  17  Wyo.  26;  see  McLemore  v.  Express  Co., 

ante. 

17.  Phillips  v.  Brill,  ante.     That  a  single  discovery  in  a  shaft 

common  to  two  lode  claims  is  insufficient;  see  Reynolds 
v.  Pascoe,  24  Utah  219;  but  see  Upton  v.  Larkin,  7 
Mont.  449;  Tiggeman  v.  Mrzlak,  40  Mont.  19. 

18.  Location,  36  L.  D.  278;  John  M.  Rankin,  36  L.  D.  522. 

§  120a.  Natural  Gas.  Natural  gas  is  a  fluid  min- 
eral substance,  subterraneous  in  its  origin  and  loca- 
tion, possessing  in  a  restricted  degree  the  properties 
of  underground  waters,  and  resembling  water  in  some 
of  its  habits.  Unlike  water  it  is  not  generally  distrib- 
uted. Its  physical  occurrence  is  in  limited  quantities 
only,  within  circumscribed  areas  of  greater  or  less 
extent.  But  the  difference  between  natural  gas  and 
underground  waters,  whether  flowing  in  channels  or 
percolating  the  earth,  is  so  marked  that  the  principles 
which  the  courts  apply  to  questions  relating  to  the 
latter  are  not  adapted  to  the  adjustment  of  the  diffi- 
culties arising  from  conflicting  interests  in  the  for- 
mer.1 

1.  Manf.  Co.  v.  Indiana  Co.,  155  Ind.  461;    see  §  121a,  post. 

§121.  Mining  for  Oil.  The  mining  for  mineral 
oils  or  natural  gas  cannot  safely  be  conducted  by 
awaiting  developments  of  nearby  land  of  similar  char- 
acter, as  those  substances,  because  of  their  wandering 
nature,  belong  to  the  owner  of  the  land  only  so  long  as 
they  remain  therein.1 

2.  No  LIMIT.     There  is  no  limit  to  the  particular 
territorial  area  beneath  the  surface  from  which  oils 
or  gas  may  be  drawn  through  any  opening.2 

3.  UNLAWFUL  DRAINAGE.     The  owner  of  superin- 
cumbent land  cannot,   lawfully,   drain  the  property 
of  another  of  its  oils  or  gas  simply  for  the  purpose  of 
depreciating  its  mineral  value.3 

4.  POSSESSION  OF  LAND  NOT  POSSESSION  OF  OIL. 
Possession  of  the  land  is  not  necessarily  the  possession 
of  the  oils  or  gases  that  may  be  thereunder.4    The  loss 
of  the  right  to  control  the  surface  is  not  necessarily  a 


§  121]  MINING  FOR   OIL.  169 

loss  of  the  right  to  mine.  These  may  still  be  extracted 
through  working  thereunder,  or  upon  adjacent  terri- 
tory.5 

5.  NUISANCE.    Drilling  or  operating  oil  wells  within 
navigable  waters  or  upon  the  sea  shore  may  constitute 
a  nuisance,6  or  upon  un-navigable  waters  may  be  a 
trespass.7 

6.  CALIFORNIAN  PROVISION.     An  oil  well  which  is 
not  drilled  or  which  may  be  abandoned  in  violation 
of  the  provisions  of  an  act  entitled.  "An  Act  to  prevent 
injury  to  oil,  gas  or  petroleum-bearing  strata  or  forma- 
tions   by    the    penetration    or    infiltration    of    water 
therein/'  will  be  declared  to  be  a  public  nuisance.8 

7.  COMMENCING  OPERATIONS    To  commence  opera- 
tions is  the  performance  of  some  act  which  has  a  tend- 
ency to  produce  an  intended  result.9 

8.  DILIGENCE.    To  prosecute  drilling  with  due  dili- 
gence to  success  or  abandonment  means,  that  there 
must  be  a  product  capable  of  division  between  the 
parties  in  the  proportions  mentioned  in  the  lease.  Un- 
less this  is  done,  drilling  is  not  prosecuted  to  success.10 

9.  TEST  WELL.    A  test  well  is  one  that  determines 
not  only  the  presence  of  petroleum  oil  but  its  com- 
mercial value  considering  its  abundance  and  accessi- 
bility.   The  information  resulting  should  be  such  as  a 
prudent   and   experienced   investor   would   desire   to 
know  before  expending  his  capital  in  labor  or  im- 
provements for  the  profitable  working  of  the  prop- 
erty.11 

10.  PARTNERSHIP.    Where  co-locators  or  other  ten- 
ants in  common  of  oil  lands  or  leases  thereof  actually 
engage  in  working  the  property  and  share  according 
to  the  interest  of  each,  the  profit  and  loss,  the  partner- 
ship relation  exists  between  them,  though  there  is  no 
express  agreement  between  them  to  be  partners  or  to 
share  profits  or  loss. 


170  PLACER   CLAIMS.  [Ch.  18 

The  presumption  in  such  a  case  would  be  that  of  a 
mining  partnership  rather  than  an  ordinary  one,  in 
the  absence  of  an  express  agreement  forming  an  or- 
dinary partnership.12 

11.  LIMITATION.    The  authority  of  one  member  of 
a  mining  partnership  to  bind  the  other  partners  is 
limited;  and  without  authority  a  partner  cannot  bor- 
row money,  execute  notes,  or  accept  bills  of  exchange, 
nor  can  a  general  superintendent  or  manager  do  so. 
The  latter  can  bind  the  partners  only  in  things  that 
are  necessary  in  the  transaction  of  the  particular  busi- 
ness and  which  are  usual  and  customary  in  such  busi- 
ness.13 

12.  PARTITION.    Partition  of  oil  and  gas  owned  by 
co-owners  separate  from  the  surface  cannot  be  decreed 
except  by  sale  and  division  of  the  proceeds.  A  judicial 
partition  thereof  by  assignment  of  the  oil  and  gas 
under  sections  of  the  surface  is  void.14 

13.  DAMAGES.    Although  the  title  to  oil  in  place  is 
not  in  the  lessee  he  may  recover  damages  from  one, 
who  without  his  consent  enters  upon    the    demised 
premises  during  the  time  of  the  lease,  drills  wells  and 
removes  and  sells  oil  therefrom.15 

1.  Brown  v.  Spilman,  155  U.  S.  665;  Acme  Oil  Co.  v.  Williams, 

140  Cal.  681;  S.  P.  R.  Co.  v.  S.  F.  Sav.  Union,  146  Cal. 
290;  Westmoreland  Co.  v.  DeWitt,  130  Pa.  St.  235.  As  to 
distinction  between  things  ferae  naturae  and  oil  and 
gas  see  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190;  Atty. 
Gen.  v.  Hudson  Co.,  70  N.  J.  Eq.  695;  Kansas  Nat.  Gas 
Co.  v.  Haskell,  172  Fed.  545. 

2.  S.  P.  R.  Co.  v.  S.  F.  Sav.  Union,  ante;    Brookshire  Co.  v. 

Casmalia  Co.,   156   Cal.   211;   see  §  121a. 

3.  Ohio  Oil  Co.  v.  Indiana,  ante;  Chesley  v.  King1,  74  Me.  164; 

Westmoreland  Co.  v.  DeWitt,  ante. 

The  obvious  difficulty  in  establishing  the  amount  of 
oil  or  the  amount  diverted  therefrom  by  the  wells  on 
adjacent  lands  would  be  a  serious  obstacle  to  the  re- 
covery of  adequate  damages  at  law.  Brewster  v.  Lan- 
yon  Co.,  140  Fed.  801;  see  §  85,  note  19,  ante. 

4.  Ohio  Oil  Co.  v.  Indiana,  ante;  Acme  Co.  v.  Williams,  ante; 

S.  P.  R.  Co.  v.  S.  F.  Sav.  Union,  ante;  Westmoreland 
Co.  v.  DeWitt,  ante;  Kiser  v.  McLean,  67  W.  Va.  294; 
see  Katz  v.  Walkinshaw,  141  Cal.  116. 

5.  S.  P.  R.  Co.  v.  S.  F.  Sav.  Union,  ante. 


§121]  MINING   FOR   OIL.  171 

6.  S.  F.  Sav.  Union  v.  Petroleum  Co.,  144  Cal.  134;  see  Yates 

v.  Milwaukee,  77  U.  S.  497;  Shively  v.  Bowlby,  152  U. 
S.  1;  Jas.  W.  Logan,  29  L.  D.  395;  Argillite  Co..  29  L. 
D.  585;  Alaska  Co.  v.  Barbridge,  1  Alaska  311;  Long 
Beach  Co.  v.  Richardson,  70  Cal.  206;  Dana  v.  Jackson 
St.  Wharf  Co.,  31  Cal.  118. 

7.  See  Kirby  v.  Potter,   138  Cal.  686. 

8.  The  Californian  legislative  provisions  as  to  drilling  and 

abandonment  of  oil  wells  are  as  follows: — 

§  1.  It  shall  be  the  duty  of  the  owner  of  any  well  now 
drilled  or  that  may  be  drilled  in  the  state  of  California 
on  lands  producing  or  containing  oil,  gas  or  petroleum, 
to  properly  case  such  well  or  wells,  with  metal  casing 
in  accordance  with  most  approved  methods,  and  to 
effectually  shut  off  all  water  overlying  or  underlying 
the  oil-bearing  strata  and  to  effectually  prevent  any 
water  from  penetrating  such  oil-bearing  strata. 

§  2.  It  shall  be  the  duty  of  the  owner  of  any  well  re- 
ferred to  in  section  1  of  this  act,  before  abandoning 
the  same  to  withdraw  the  casing  therefrom,  and  to 
securely  fill  such  well  with  clay,  earth  or  cement  mor- 
tar, or  other  good  and  sufficient  materials,  used  alone 
or  in  suitable  combination,  and  thoroughly  pack  and 
tamp  the  same  into  such  well  to  a  point  as  far  above 
the  upper  oil-bearing  strata  as  the  commissioner 
hereinafter  provided  for  may  decide  shall  be  necessary, 
and  while  withdrawing  the  casing  therefrom  to  ef- 
fectually and  permanently  shut  off  and  exclude  all 
water  underlying  and  overlying  said  oil-bearing 
strata,  and  to  the  satisfaction  of  the  commissioner, 
whether  any  oil-bearing  strata  has  been  encountered 
or  not. 

§  3.  It  shall  be  the  duty  of  the  owner  of  any  well  re- 
ferred to  in  section  1  of  this  act,  to  keep  a  careful  and 
accurate  log  of  the  drilling  of  such  well,  such  log  to 
show  the  character  and  depth  of  the  formations  passed 
through  or  encountered  in  the  drilling  of  such  well, 
and  particularly  to  show  the  location  and  depth  of  the 
water-bearing  strata  together  with  the  character  of 
the  water  encountered  from  time  to  time,  and  to  show 
•  at  what  point  such  water  was  shut  off,  if  at  all,  and 
if  not  so  state  in  such  log,  and  show  the  depth  at 
which  oil-bearing  strata  is  encountered,  the  depth  and 
character  of  the  same,  "and  whether  all  water  over- 
lying and  underlying  such  oil-bearing  strata  was  suc- 
cessfully and  permanently  shut  oft  so  as  to  prevent  the 
percolation  or  penetration  into  such  oil-bearing  strata: 
said  record  of  well  to  be  kept  on  file  and  subject  to 
the  inspection  of  hereinafter  mentioned  commissioner 
at  any  time  during  business  hours. 

§  4.  The  term  "owner"  as  herein  used  shall  mean  and 
include  each  and  every  person,  persons,  partnership, 
co-partnership,  association  or  corporation  owning, 
leasing,  managing,  operating,  drilling  or  possessing 
any  well  mentioned  in  sections  1  and  2  of  this  act: 
either  as  principal  or  principals,  lessee  or  lessees  of 
such  principal  or  principals,  contractor  or  contrac- 
tors, and  their  and  each  of  their  employees.  The 
term  "oil-bearing  strata"  as  herein  used  shall  mean 
and  include  any  bed,  seam  or  stratum  of  rock  or  sand 


172  PLACER   CLAIMS.  [Ch.  18 

or  other  material  which  contains,  includes,  or  yields 
earth  oil,  rock  oil,  or  petroleum  oil  or  natural  gas  or 
either  of  them. 

In  order  to  carry  out  the  provisions  of  sections  1  and 
2  of  this  act,  upon  petition  of  three  or  more  operating 
oil  companies,  within  the  county,  it  shall  be  the  duty 
of  the  board  of  supervisors  of  said  county  to  appoint 
a  commissioner  who  shall  be  a  practical  oil  man,  whose 
term  of  office  shall  be  until  December  31st  of  the  year 
following  time  of  appointment  or  until  his  successor 
is  appointed. 

The  duties  of  said  commissioner  shall  be  to  see  that 
the  provisions  of  this  act  shall  be  enforced.  . 

The  compensation  of  said  commissioner  shall  be 
fixed  by  the  board  of  supervisors  and  shall  be  paid  out 
of  the  general  county  fund. 

Upon  the  filing  of  a  complaint  with  said  commis- 
sioner alleging  the  violation  of  any  of  the  provisions 
of  sections  1  or  2  of  this  act,  it  shall  be  the  duty  of 
the  hereinbefore  mentioned  commissioner  of  the 
county,  if  so  requested  by  the  complainants,  to  make 
or  cause  to  be  made,  a  thorough  investigation  of  the 
well  in  question,  to  determine  whether  or  not  any  of 
the  provisions  of  this  act  have  been  violated  and  for 
such  purpose  he  is  hereby  empowered  to  appoint  all 
necessary  agents  and  assistants  to  conduct  such  ex- 
amination and  such  agents  and  assistants  may  enter 
upon  the  premises  where  such  well  is  situated  and 
may  take  charge  of  such  well  for  the  purpose  of  mak- 
ing such  investigations.  If  the  defendant  in  the  action 
shall  be  convicted  of  a  violation  of  any  of  the  pro- 
visions of  sections  1  or  2  of  this  act,  he  shall,  in  addi- 
tion to  the  penalties  hereafter  set  forth  pay  .all  reason- 
able and  proper  costs  incident  to  the  making  of  such 
investigations. 

Any  well  drilled  and  abandoned,  in  violation  of  sec- 
tions 1  or  2  of  this  act  is  hereby  declared  a  public 
nuisance. 

If  any  wetll,  under  the  provisions  of  sections  1  or  2 
.of  this  act  be  declared  a  public  nuisance,  it  shall  be 
the  duty  of  the  commissioner  of  the  county  in  which 
such  well  is  situated  to  enter  upon  the  premises,  take 
possession  of  such  well  and  to  abate  said  nuisance  and 
to  take  all  necessary  steps  to  prevent  the  percolation 
or  penetration  of  water  into  the  oil-bearing  strata.  He 
shall  keep  an  accurate  account  of  the  expense  of  such 
work  and  all  expenses  so  incurred  shall  be  a  charge 
against  the  owner  of  such  well  and  a  lien  upon  the 
same. 

Any  person  violating  the  provisions  of  this  act  shall 
be  guilty  of  a  misdemeanor. 

Any  owner  of  any  well  referred  to  in  sections  1  or 
2  of  this  act,  who  refuses  to  permit  the  commissioner 
to  inspect  the  same  or  who  wilfully  hinders  or  delays 
the  commissioner  in  the  performance  of  his  duty  is 
guilty  of  a  misdemeanor. 

An  act  to  prevent  injury  to  oil,  or  petroleum-bearing 
strata,  or  formations  by  infiltration  or  intrusion  of 
water  therein  approved  March  24,  1903,  is  hereby  re- 
pealed. Cal.  Stats.  1909,  p.  586. 


§  122]  OIL,   LAND    LEASES.  173 

9.  Fleming  Co.  v.  So.  Penn.  Co.,  37  W.  Va.  645;  Duffield  v. 
Russell,  19  Ohio  C.  C.  266;  see  Henderson  v.  Ferrell, 
183  Pa.  St.  547. 

10.  Kennedy  v.   Crawford,   138   Pa.   St.   561. 

11.  Petroleum  Co.  v.  Coal  Co.,  89  Tenn.  381. 

12.  Childers  v.  Neely,  47  W.  Va.   70;  see  §58,  ante. 

13.  Id.;  see  Randall  v.  Meridith,  76  Tex.  669. 

14.  Hall  v.  Vernon,  47  W.  Va.  297. 

15.  Backer  v.  Penn  Lub.  Co.,   162  Fed.  627;  see  §  122,  note  7, 

post. 

§  121a.  Recent  Californian  Legislation.  Under  a 
recent  Californian  legislative  enactment  the  wilful 
waste  of  natural  gas  into  the  atmosphere  is  deemed 
a  misdemeanor,  punishable  by  both  fine  and  imprison- 
ment.1 

See  §  120a,  ante. 

1.  §  1.  All  persons,  firms,  corporations,  and  associations  are 
hereby  prohibited  from  wilfully  permitting  any 
natural  gas  wastefully  to  escape  into  the  atmosphere. 

§  2.  All  persons,  firms,  corporations  and  associations 
digging,  drilling,  excavating,  constructing  or  owning 
or  controlling  any  well  from  which  natural  gas  flows 
shall  upon  abandonment  of  such  well,  cap  or  other- 
wise close  the  mouth  of  or  entrance  to  the  same  in 
such  a  manner  as  to  prevent  the  unnecessary  or 
wasteful  escape  into  the  atmosphere  of  such  natural 
gas.  And  no  person,  firm,  corporation  or  association 
owning  or  controlling  land  in  which  such  well  or 
wells  are  situated  shall  wilfully  permit  natural  gas 
flowing  from  such  well  or  wells  wastefully  or  un- 
necessarily to  escape  into  the  atmosphere. 

§  3.  Any  person,  firm,  corporation  or  association  who 
shall  violate  any  of  the  provisions  of  this  act  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  punished  by  a  fine  of  not  more 
than  $1,000,  or  by  imprisonment  in  the  county  jail 
for  not  more  than  one  year,  or  by  both  such  fine  and 
imprisonment. 

§  4.  For  the  purposes  of  this  act  each  day  during 
which  natural  gas  shall  be  wilfully  allowed  waste- 
fully  or  unnecessarily  to  escape  into  the  atmosphere 
shall  be  deemed  a  separate  and  distinct  violation  of 
this  act. 

§  5.  All  acts  or  parts  of  acts  in  conflict  herewith  are 
hereby  repealed. 

§  6.  This  act  shall  take  effect  immediately.  (Ap- 
proved March  25,  1911.)  Cal.  Stats.  1911,  p.  499. 

§  122.  Oil  Land  Leases.  Because  of  the  peculiar 
nature  of  petroleum  oil,  leases  for  lands  of  that  char- 
acter are  governed  by  different  principles  from  leases 
of  other  classes  of  real  property.1 


174  PLACER   CLAIMS.  [Ch.  18 

2.  CONSTRUCTION.    This  class  of  leases  is  construed 
most  strongly  against  the  lessee  and  favorably  to  the 
lessor  2  and  the  law  will  imply  conditions  to  attain  the 
end  sought  by  its  execution.3 

3.  IMPLIED  COVENANTS.  "Where  a  lease  of  oil  lands, 
with  royalty  to  the  lessor  on  the  product  is  the  sole  and 
only  consideration  therefor  it  is  necessarily  implied, 
as  of  the  essence  of  the  contract,  that  the  lessee  shall 
work  the  wells  with  reasonable  dispatch,   for  their 
mutual  advantage  4  and  to  prevent  drainage  by  ad- 
verse operations  in  the  vicinity  of  the  demised  land.5 

4.  FORFEITURE.     If  these  conditions  are  not  per- 
formed the  lessor  is  warranted  in  re-entering  and  tak- 
ing possession  of  the  premises  and  terminating  the 
lease.    If  the  right  of  forfeiture  could  not  be  exercised 
under  such  circumstances,  a  lessor  would  be  at  the 
mercy  of  the  lessee.6 

5.  VESTED  RIGHT.    When  oil  is  found,  the  right  to 
produce  it  becomes  a  vested  right  and  the  lessee  will 
be  protected  in  extracting  it,  agreeably  to  the  terms  of 
the  lease.7 

6.  PAYING  QUANTITY.     The  phrase  "paying  quan- 
tity" is  to  be  construed  with  reference  to  the  operator, 
and  by  his  judgment  when  exercised  in  good  faith:8 
There  must  also  be  taken  into  consideration  the  dis- 
tance to  market  and  the  expense  of  marketing  in  de- 
termining whether  oil  can  be  marketed  at  a  reason- 
able profit.9 

7.  TAXATION.    Mining  rights  and  privileges  under 
an  oil  lease  are  subject  to  taxation  separately  from 
and  in  addition  to  the  interest  or  estate  of  the  lessor, 
whether  the  fee  is  in  the  United  States  or  in  the  State 
within  which  the  claim  may  lie.10 

See  §  61,  ante. 

1.  Acme  Oil  Co.  v.  Williams,  140  Cal.  681. 

2.  Huggins  v.  Daley,  99  Fed.  606;  Superior  Oil  Co.  v.  Mehlin, 

(Okla.)  108  Pac.  545. 

3.  Acme  Oil   Co.  v.  Williams,   ante;   see  §  61-4,  ante. 


§123]  HYDRAULIC  CLAIMS.  175 

4.  Id.     Daughetee  v.  Ohio  Oil  Co.,  151  111.  A.  102;  Bettman  v. 

Harness,    42   W.   Va.    433;    Parish   Fork   Co.   v.    Bridge- 
water  Co.,   51  W.  Va.   583. 

5.  Aye    v.    Philadelphia    Co.,    193    Pa.    St.    451;    Kleppner    v. 

Lemon,  198  Pa.  St.  581;  Parish  Fork  Co.  v.  Bridgewater 
Co.,  ante. 

6.  Acme  Oil  Co.  v.  Williams,  ante. 

7.  Brookshire   Co.   v.   Casmalia  Co.,   156   Cal.   211;   Dickey  v. 

Coffeyville  Co.,  69  Kan.  106;  Colgan  v.  Forest  Co.,  194 
Pa.  St.  234;  see  Huggins  v.  Daley,  ante;  Backer  v. 
Penn.  Lub.  Co.,  162  Fed.  627;  Florence  Co.  v.  Orman, 
19  Colo.  A.  79;  Rawlings  v.  Armel,  70  Kan.  778;  Wagner 
v.  Mallory,  169  N.  Y.  501.  Oil  and  gas,  while  in  the 
earth,  unlike  solid  minerals,  are  not  the  subject  of  own- 
ership distinct  from  the  soil,  and  the  grant  of  the  oil  and 
gas,  therefore,  is  a  grant,  not  of  the  oil  that  is  in  the 
ground,  but  such  a  part  as  the  grantee  may  find,  and 
passing  nothing  that  can  be  the  subject  of  an  eject- 
ment or  other  real  action.  Kolachny  v.  Galbreath 
(Okla.),  110  Pac.  902;  see  Payne  v.  Neuval,  155  Cal.  46. 
The  term  "grant"  may  be  synonymous  with  the  term 
"lease."  Raynolds  v.  Hanna,  55  Fed.  783. 

8.  Young  v.  Forest  Co.,  194  Pa.  St.  243;  Summerville  v.  Apollo 

Co.,  207  Pa.  St.  334;  Manhattan  Co.  v.  Carrell,  164  Ind. 
526;  see  Tucker  v.  Watts,  25  Ohio  C.  C.  320. 

9.  lams  v.  Carnegie  Co.,  194  Pa.  St.  72. 

10.  Graciosa  Oil  Co.  v.  Sta.  Barbara  Co.,  155  Cal.  140;  see 
Barnes  v.  Bee,  138  Fed.  476;  Con.  Coal  Co.  v.  Baker,  135 
111.  545;  Md.  City  Co.  v.  Goodspeed  Co.  (Kan.),  109  Pac. 
1002.  See  §  67-12,  ante. 

§  123.  Hydraulic  Claims.  In  California  hydraulic 
mining  is  denned  by  legislative  enactment  as  "mining 
by  means  of  the  application  of  water  under  pressure 
through  a  nozzle  against  a  natural  bank."  * 

2.  RESTRICTION.    Hydraulic  mining  is  not  of  itself 
unlawful  but  is  restricted  within  certain  areas  because 
detrimental  to  other  interests.2    Lands  within  the  San 
Joaquin  and  Sacramento  River  Systems  within  the 
State  of  California  may  be  mined  only  under  the  pro- 
visions of  the  Congressional  act  of  March  1,  1892.3 

3.  CONSTITUTIONALITY  OF  ACT.    The  above  act  has 
been  declared  to  be  constitutional.4 

4.  MINING    WITHOUT    RESTRICTION.     Mining    on 
lands  within  the  State  of  California,  outside  of  the 
above  mentioned  areas  may  be  carried  on  wherever 
and  whenever  the  same  will  not  result  in  material  in- 
jury to  navigable  streams,  or  to  land  adjacent  thereto.5 


176  PLACER   CLAIMS.  [Ch.  18 

1.  C.   C.,   §1425;     see   also  Woodruff  v.   N.   Bloomfleld   Co.,    18 

Fed.  753,  in  which  hydraulic  mining  is  judicially  de- 
nned as  "the  process  by  which  a  bank  of  gold  bearing 
earth  and  rock  is  excavated  by  a  jet  of  water,  dis- 
charged through  the  converging  nozzle  of  a  pipe, 
under  a  great  pressure,  the  earth  or  debris  being 
carried  away  by  the  same  water,  through  sluices,  and 
discharged  on  lower  levels  into  the  natural  streams 
and  water  courses  below,  where  the  gravel  or  other 
material  of  the  bank  is  cemented,  or  where  the  bank 
is  composed  of  masses  of  pipe-clay,  it  is  shattered  by 
blasting  with  powder";  see,  also,  U.  S.  v.  N.  Bloomfield 
Co.,  53  Fed.  625;  U.  S.  v.  Lawrence,  53  Fed.  633. 

2.  N.  Bloomfield  Co.  v.  U.  S.,  88  Fed.  664;  Yuba  Co.  v.  Cloke, 

79  Cal    239 

3.  27   Stats.   507;  'Amended,   34   Stats.    1001;   see  N.  Bloomfield 

Co.  v.  U.  S.,  ante. 

4.  N.  Bloomfield  Co.  v.  U.  S.,  ante. 

5.  C.  C.,  §  1424. 

§  124.  Dredge  Claims  —  In  General.  Mining 
rights  cannot  be  acquired  under  the  mining  act  in 
the  bed  or  within  or  upon  the  banks  of  a  navigable 
river.1 

The  bed  of  an  un-navigable  river  is  open  to  location 
and  patent,  as  public  land,  when  the  opposite  banks 
thereof  have  not  passed  into  private  ownership.  Pro- 
prietors bordering  on  such  streams,  unless  restricted 
by  the  terms  of  their  grant  from  the  government,  hold 
to  the  center  of  the  stream,  notwithstanding  the  run- 
ning of  meander  lines  on  the  banks  thereof,  as  the 
true  boundary  of  the  land  is  the  thread  of  the  stream.2 

2.  LOCATION.  When  the  bed  of  an  un-navigable 
river  is  subject  to  location  3  it  is  sufficient,  under  the 
mining  act,  to  mark  the  location  by  the  posting  of  a 
notice  of  location  on  some  natural  object  in  the 
stream,4  or  on  the  bank,5  giving  the  measurements  of 
the  claim,  identifying  the  stream  and  showing  a  def- 
inite relation  between  the  stream  and  the  object  on 
which  the  notice  is  posted.6 

1.  Lockhart   v.    Johnson,    181    U.    S.    516;    Jas.    W.    Logan,    29 

L.  D.  395;  Argillite  Co.,  29  L.  D.  585. 

2.  St.  Paul  Co.  v.  Schurmeier,  74  U.  S.  272;  Hardin  v.  Jordan, 

140  U.  S.  371;  Home  v.  Smith,  159  U.  S.  40;  John  P. 
Hoel,  13  L.  D.  588;  J.  H.  Lessard,  13  L.  D.  724;  Max 
Loibl,  21  L.  D.  429;  Wm.  Rabftn,  2  L.  D.  764;  Lux  v. 


§  125]  STONE  CLAIMS.  177 

Haggin,  69  Cal.  255;  Kirby  v.  Potter,  138  Gal.  686.  The 
rules  and  laws  controlling  government  surveys  are  not 
involved  in  the  case  of  a  private  grant  deed  of  a  por- 
tion of  a  larger  tract  owned  by  the  grantor.  Freeman 
v.  Bellegarde,  108  Cal.  179;  see  §35-6,  ante. 

3.  Wm.  Rablin,  ante. 

4.  McKinley  Creek  Co.  v.  Alaska  United  Co.,  183  U.  S.  563. 

5.  Haws  v.  Victoria  Copper  Co.,  160  U.  S.  303. 

6.  McKinley  Creek  Co.  v.  Alaska  United  Co.,  ante. 

§  124a.  Recent  California!!  Legislation.  Under  a 
legislative  enactment  in  California,  in  effect  April  14, 
1911,  the  right  to  mine  minerals  contained  in  the 
waters  of  any  stream  or  lake  in  that  state  may  not  be 
gained,  in  any  manner,  except  by  lease  or  express  per- 
mission of  the  state.  Such  lease  or  permission  cannot 
be  granted  for  a  longer  period  than  25  years.  * 

2.  UPLANDS.  A  leasehold  interest,  not  exceeding 
25  years,  is  the  only  lawful  way  of  extracting  min- 
erals from  land  uncovered  by  the  recession  or  drain- 
age of  the  waters  of  inland  lakes  when  the  cover- 
ing waters  are  so  impregnated  with  minerals  as  to  be 
valuable  for  the  purpose  of  extracting  such  minerals.2 

1.  Cal.  Stats.  1911,  p.  904. 

2.  Cal.  Stats.  1911,  p.  903. 

§  125.  Stone  Claims— In  General.  Land  chiefly 
valuable  for  building  stone  and  not  reserved  for  the 
benefit  of  the  public  schools  or  donated  to  any  state 
may  be  acquired  by  location  and  patent  under  the 
provisions  of  the  law  in  relation  to  placer  mining 
claims.1 

2.  CHARACTER     OF     LOCATION.       Non-mineralized 
stone  lying  in  vein  formation  must  be  located  as  a 
placer  claim,2  but  if  it  be  mineralized  and  constitute 
"rock  in  place"  it  must  be  located  as  a  lode  claim.3 

3.  TIMBER  AND  STONE  ACT.    Surveyed  public  land 
that  does  not  contain  a  valuable  mineral  deposit  and  is 
uninhabited,    unfitted    for    cultivation    and    valuable 
chiefly  for  timber  or  stone  may  be  entered  under  the 
provisions  of  the  "Timber  and  Stone  act."  4 


178  PLACER   CLAIMS.  [Ch.  18 

4.  AGRICULTURAL  ENTRY.     Where  land  is  entered 
under  the  provisions  of  that    act    it    is    immaterial 
whether  it  can  be  marketed  at  a  profit  or  not.    In  that 
event  it  is  in  the  nature  of  an  "agricultural  entry."  ° 

5.  SALE  BY  ENTRYMAN.    An  entryman  may  legally 
sell  his  claim  after  entry  and  before  the  final  certifi- 
cate is  issued  by  the  Land  Department,  although  the 
entry  was  made  in  behalf  of  another.6 

6.  EETURN  OF  FEES.    The  fee  required  to  be  paid 
at  the  time  of  the  presentation  of  a  timber  and  stone 
sworn  statement  should  be  returned  to  the  applicant 
in  all  cases  where  for  any  reason  other  than  fraud,  the 
local  officers  reject  such  sworn  statement  at  the  time 
of  the  presentation  or  at  any  time  prior  to  the  submis- 
sion of  proof  in  pursuance  of  the  published  notice.7 

1.  27  Stats.  348;  Forsythe  v.  Weingart,  27  L.  D.  680;  Hender- 

son v.  Fulton,  35  L.  D.  652. 

2.  Henderson  v.  Fulton,  ante. 

3.  E.  M.  Palmer,  38  L.  D.  294. 

4.  20  Stats.  89;  Amended,  27  Stats.  348;  Regulations,  37  L.  D. 

289;  Duncan  v.  Archambault,  35  L.  D.  498;  see  Hammel 
v.  Salzman,  17  L.  D.  496;  Forsythe  v.  Weingart,  ante; 
Gallagher  v.  Gray.  35  L.  D.  90.  The  land  is  appraised 
by  smallest  legal  subdivisions  at  their  reasonable 
value,  but  at  not  less  than  $2.50  an  acre.  Each  of  such 
subdivisions  must  be  of  the  character  subject  to  dis- 
position under  the  law.  This  may  be  determined  at  any 
time  before  the  actual  issuance  of  the  patent.  Albert 
R.  Pfau,  Jr.,  39  L.  D.  359.  Land  upon  which  there  is  a 
growth  of  timber  useful  for  mining  purposes  and  so 
located  with  reference  to  mines  as  to  give  it  a  value 
for  such  purposes  greater  than  its  value  for  agricul- 
tural purposes  is  timber  land  within  the  meaning  of 
the  Act  of  June  3,  1878,  and  subject  to  entry  under 
that  Act.  Grenon  v.  Miller,  39  L.  D.  577.  Mere  errors 
of  judgment  by  the  applicant  as  to  the  character  of 
the  land,  or  as  to  its  unoccupancy  will  not  prevent  re- 
payment of  the  purchase  money  if  the  application  be 
rejected.  Frank  G.  Bell,  39  L.  D.  191. 

5.  Narver  v.  Eastman,  34  L.  D.  123;  see  Forsythe  v.  Weingart, 

ante. 

6.  U.  S.  v.   Biggs,  211  U.  S.   507.     See  U.  S.  v.  Doughten,   186 

Fed.  226.  That  a  transfer  by  the  patentee  to  a  cor- 
poration consisting  of  himself  and  family  will  not 
constitute  the  corporation  a  bona  fide  purchaser,  see 
U.  S.  v.  Smith,  181  Fed.  545. 

7.  Instructions,   39  L.  D.  573. 


§  127]  TAILINGS.  179 

§  126.  Salt  Claims — In  General.  Under  a  special 
act  all  unoccupied  public  lands  of  the  United  States 
containing  salt  springs  or  deposits  of  salt,1  that  is 
common  salt,  or  chloride  of  sodium,  in  its  various 
forms  of  existence  or  deposit  2  may  be  located  and 
patented  under  the  provisions  of  the  law  in  relation  to 
placer  claims.3 

2.  CHARACTER  OF  DEPOSIT.     It  is  the  actual  pro- 
duction of  salt,  by  the  usual  processes  that  brings  a 
saline  spring  or  deposit  within  the  purview  of  the  law.4 

3.  LIMITATION.     The  same  person  may  not  locate 
nor  patent  more  than  one  claim.5 

4.  NITRATE    AND    BORATE  LANDS.     Lands  chiefly 
valuable  for  nitrate  or  borate  deposits  are  not  within 
the  provisions  of  the  special  act.6 

1.  31  Stats.   745;  as  to  saline  lands  in  New  Mexico  see  Terr. 

of  N.  M.,  35  L.  D.  1;  in  the  Philippine  Islands  see  33 
Stats.  695;  in  Utah  see  28  Stats.  109;  as  excepted  from 
the  grant  to  S.  P.  R.  Co.  see  Elliott  v.  S.  P.  R.  Co.,  35 
L.  D.  149. 

2.  Terr,  of  N.  M.,  ante;  Lovely  Placer  Claims,  35  L.  D.  426. 

3.  31  Stats.   745. 

4.  Lovely   Placer   Claims,   ante;   Jeremy  Co.   v.   Thompson,   20 

L.  D.  299. 

5.  31  Stats.  745. 

6.  Min.  Lands,   1  L.  D.   561. 

§  127.  Tailings — In  General.  Tailings  deposited 
on  public  land  initiate  no  right  to  dump  thereon,1 
and  such  land  so  covered  may  be  located  as  a  placer 
claim.2 

2.  DEPOSITION  OF  TAILINGS.  Mining  debris,  sand, 
gravel,  sediment  or  other  material  may  not  be  de- 
posited so  as  to  injure  the  land  of  another,  without 
his  consent.3 

1.  Miser  v.  O'Shea,  37  Or.  231;  see  Jones  v.  Jackson,  9  Cal.  237; 

O'Keiffe  v.  Cunningham,  9  Cal.  589. 

2.  Jones  v.  Jackson,  ante;  Rogers  v.  Cooney,  7  Nev.  213;  see 

Ritter  v.  Lynch,  123  Fed.  930;  Miser  v.  O'Shea,  ante. 

3.  Woodruff  v.  N.  Bloomfield  Co.,   18  Fed.  753;    Travis  Placer 

Co.  v.  Mills,  94  Fed.  909;  Otaheite  Co.  v.  Dean 
102  Fed.  929;  Hobbs  v.  Amador  Co.,  66  Cal.  161;  Yuba 
Co.  v.  Cloke,  79  Cal.  239;  Fitzpatrick  v.  Montgomery, 
20  Mont.  181;  Carson  v.  Hayes,  39  Or.  97. 


180  TIMBER  LANDS.  [Ch.  19 


CHAPTER  XIX. 

TIMBER  LANDS. 

§  129.  In  general — mineral  land — mineral  location — subsisting 

location — subsequent  discovery. 
§  130.  Timber  cutting  on  mineral  land — purposes — restriction 

— exceptional  right. 

§  131.  Timber  cutting  in  forest  reserves. 
§  132.  Timber  cutting  on  Indian  lands — criminal  offense. 
§  133.  Timber  cutting  on  abandoned  military  reservations. 
§  134.  Damages — bona  fide  purchaser. 

§  129.  In  General.  Surveyed  land  within  the 
public  domain  chiefly  valuable  for  timber  but  unfit 
for  cultivation  at  the  time  of  sale,1  non-mineral  in 
character,  unoffered,  unreserved,  unappropriated,  un- 
inhabited and  without  improvements  (except  for 
ditch  or  canal  purposes),  save  such  as  were  made  by 
or  belong  to  the  claimant  2  may  be  acquired  under  the 
provisions  of  the  "Timber  and  Stone  Act."  3 

2.  MINERAL  LAND.    If  the  land  be  mineral  in  char- 
acter the  title  thereto  together  with  the  timber  thereon 
may  be  acquired  under  the  mining  laws.4 

3.  MINERAL  LOCATION.    Until  the  final  entry  of  the 
land  as  "timber  land"  it  is  subject  to  mineral  location.5 

4.  SUBSISTING  LOCATION.     Where,  at  the  time  of 
the  issuance  of  a  "timber  patent"  there  was  a  valid 
subsisting  mining  claim  upon  the  land  covered  thereby 
the  patentee  will  be  held  as  the  trustee  for  the  mineral 
claimant.6 

5.  SUBSEQUENT  DISCOVERY.     Discovery  of  mineral 
subsequent  to  the  issuance  of  such  a  patent  will  inure 
to  the  benefit  of  the  patentee.7 

1.  U.   S.  v.   Budd,    144  U.    S.   154;   Thayer  v.   Spratt,   189   U.   S. 

346;  Gibson  v.  Smith,  18  L.  D.  249;  Johnson  v.  MacMil- 
lan,  22  L.  D.  647;  see.  Instructions,  21  L.  D.  67;  see 
Bunker  Hill  Co.  v.  U.  S.  178  Fed.  914. 

2.  Circular,  6  L.  D.  114. 

Improvements  will  not  exclude  land  from  disposal 
unless  made  and  maintained  under  a  bona  fide  occupa- 
tion of  the  land,  see  Kingston  v.  Eckman,  22  L.  D.  234. 
Abandoned  mineral  "workings  are  no  bar,  see  Chor- 
micle  v.  Hiller,  26  L.  D.  9-413.  Burden  of  proof  rests 
upon  timber  claimant.  Peasely  v.  Whiting,  20  L.  D.  24. 


§  131]          TIMBER  CUTTING  IN  FOREST  RESERVES.         181 

3.  27   Stats.   88.     As  to   timber  lands   in  California,  see  U.  S. 

V.  Benjamin,  21  Fed.  285. 

As  to  "all  the  public  land  states,"  see  Circular,  15  L. 
D.  360. 

4.  Gallagher  v.  Gray,  35  L.  D.  90. 

5.  See  Mery  v.  Brodt,  121  Cal.  332. 

6.  Id. 

7.  See  Shaw  v.  Kellogg',  170  U.  S.  312;  Cowell  v.  Lammers,  21 

Fed.  200. 

§  130.  Timber  Cutting  on  Mineral  Land.  Timber 
on  land  belonging  to  the  United  States  and  known  to 
be  so  valuable  for  its  minerals  as  to  justify  expenditure 
for  their  extraction  may  be  felled  and  removed  by 
citizens  and  bona  fide  residents  (not  railroad  corpora- 
tions) of  the  "mining  states"  and  other  mineral  dis- 
tricts of  the  United  States.1 

2.  PURPOSES.     The  timber  may  be  used  for  build- 
ing, agricultural,  mining,  smelting,  roasting  of  ores,  or 
"other  domestic  purposes."  2 

3.  RESTRICTION.     The  "cutting"  is  subject  to  such 
rules  and  regulations  as  the  Secretary  of  the  Interior 
may  prescribe.3 

4.  EXCEPTIONAL  EIGHT.    The  right  to  cut  is  excep- 
tional and  quite  narrow.     The  party  claiming  it  must 
prove  it.4- 

1.  U.   S.   v.   Plowman,   216  U.   S.   372,   reversing  s.   c.   151   Fed. 

1022,  based  upon  U.  S.  v.  Basic  Co.,  121  Fed.  504  and 
U.  S.  v.  Rossi,  133  Fed.  380. 

2.  20.  Stats.   88;  U.   S.  v.   Price  T.   Co.,   109   Fed.   239;   Teller  v. 

U.  S.,  113  Fed,  273;  U.  S.  v.  Edgar,  140  Fed.  655;  U.  S.  v. 
United  Verde  Co.,-  196  U.  S.  207;  Gallagher  v.  Gray,  35 
L.  D.  90;  Centerville,  Co.,  39  L.  D.  80. 

As  to  sale  and  use  of-  timber  on  unreserved  public 
land  in  Alaska,  see  Regulations,  36  L.  D.  536;  Instruc- 
tions, 36  L.  D.  73. 

3.  20  Stats.,  ante. 

4.  Instructions,    21   L.   D.   67;  Johnson   v.   MacMillan,    22   L.   D. 

647;  U.  S.  v.  Plowman,  ante. 

That  a  miner  may  cut  timber  in  the  ordinary  work- 
ing of  his  mining  claim,  see  Gallagher  v.  Gray,  ante; 
as  to  cutting  timber  necessary  for  the  reduction  of 
ores,  see  U.  S.  v.  United  Verde  Co.,  ante. 

§  131.    Timber  Cutting  in  Forest  Reserves.     The 

timber  (and   stone)  found   upon   forest   reservations 
may  be  used  free  of  charge,  by  bona  fide  settlers,  min- 


182  TIMBER  LANDS.  [Ch.  19 

ers,  residents  and  prospectors  for  minerals,  for  fire 
wood,  fencing,  buildings,  mining,  prospecting  and 
"other  domestic  purposes"  as  may  be  needed  by  such 
persons  within  the  state  or  territory  wherein  such  re- 
servations may  be  located;  as  permitted  by  the  Secre- 
tary of  Agriculture  under  regulations  prescribed  by 
him.1 

1.  30  Stats.  34;  see  33  Stats.  628;  U.  S.  v.  United  Verde  Co., 
196  U.  S.  207;  see  Rules  and  Regulations,  24  L.  D.  589; 
U.  S.  v.  Rizzinelli,  182  Fed.  675. 

§  132.  Timber  Cutting  on  Indian  Lands.  "Where 
the  fee  remains  in  the  United  States,  Indians  residing 
on  reservations  or  allotments  may,  from  year  to  year, 
under  such  regulations  as  the  President  may  prescribe 
fell,  cut,  remove,  sell  or  otherwise  dispose  of  the  dead 
timber  standing  or  fallen  on  such  reservation  or  allot- 
ments for  the  sole  benefit  of  such  Indian  or  Indians.1 

2.  CRIMINAL  OFFENSE.  Unlawful  cutting  of  stand- 
ing timber  on  such  lands  is  a  criminal  offense.2 

1.  25  Stats.  673;  see  30  Stats.  501;  Pine  River  Co.  v.  U.  S.,  186 

U.  S.  279. 

2.  25  Stats.  166. 

§  133.  Timber  Cutting  on  Abandoned  Military 
Reservations.  Timber  cutting  on  an  abandoned  mil- 
itary reservation  not  restored  to  the  public  domain  is 
unlawful.1 

1.  Fort  Cameron  Reserve,  2  L.  D.  822. 

§  134.  Damages.  In  an  action  to  recover  dam- 
ages for  cutting  and  carrying  away  timber  from  the 
public  or  Indian  lands,  the  rules  for  assessing  them 
are  as  follows.  (1)  When  the  defendant  is  a  wilful 
trespasser,  the  full  value  of  the  property  at  the  time  of 
bringing  the  action,  with  no  deduction  for  his  labor 
and  expense.  (2)  When  the  defendant  is  an  unin- 
tentional or  mistaken  trespasser,  the  value  at  the  time 


§  134]  DAMAGES.  183 

of  the  commission  less  the  amount  which  such  tres- 
passer has  added  to  its  value.1 

2.  BONA  FIDE  PURCHASER.  A  purchaser  from  a 
wilful  trespasser,  without  notice  of  the  wrong  or  the 
true  ownership  of  the  property,  is  only  liable  for  the 
value  thereof  at  the  time  of  such  purchase,  and  not 
for  any  labor  or  expense  he  may  bestow  upon  it  there- 
after.2 

1.  Woodenware  Co.  v.  U.  S.,  106  U.  S.  432;  U.  S.  V.  Williams, 

18  Fed.   475. 

2.  U.  S.  v.  Heilner,  26  Fed.  80;  but  see  U.  S.  v.  Bagnell  Co.,  178 

Fed.  795;    see,  generally,  U.  S.  v.  Detroit  Co.,  200  U.  S. 
321. 


CHAPTER  XX. 

TOWNSITES. 

§  135.  In  general — corporate  authorities — county  judge — trust 

— mineral   reservation — insufficient  mineral  rights. 
§  136.  Adverse  suits. 

§  135.  In  General.  When  public  land,  not  sub- 
ject to  entry  under  the  agricultural  pre-emption  laws, 
is  settled  upon  and  occupied  as  a  townsite,  it  may  be 
entered  as  such.1 

.  2.  CORPORATE  AUTHORITIES.  If  the  town  or  city  be 
incorporated  the  entry  may  be  made  by  the  corporate 
authorities  thereof.2 

3.  COUNTY  JUDGE.     If  not  incorporated  the  entry 
may  be  made  by  the  judge  of  the  county  court  for  the 
county  in  which  such  town  is  situated.3 

4.  TRUST.     The  latter  entry  is  made  in  trust  for 
the  several  use  and  benefit  of  the  occupants  thereof, 
according  to  their  respective  interests.4 

5.  MINERAL  RESERVATION.  No  title  can  be  acquired 
under  a  townsite  entry  to  any  vein  of  gold,  silver, 
cinnabar,  copper,  or  lead,  nor  to  any  valid  mining 
claim  or  possession  held  under  existing  law.5    Deposits 
not  known  to  be  of  such  extent  and  value  as  to 
justify  expenditures  for  the  purpose  of  extracting 


184  TOWNSITES.  [Ch.  20 

them  at  the  time  of  the  townsite  entry  will  pass 
thereunder.6 

6.  INSUFFICIENT  MINERAL  EIGHT.  A  location  will 
not  be  held  to  be  a  "valid  mining  claim  and  possession" 
where  its  claimant  has  had  ample  time  and  oppor- 
tunity to  show  the  mineral  value  of  the  land  and 
has  failed  to  do  so.7  While  a  "mine"  must  be  known 
to  be  such  at  the  time  of  the  townsite  entry,  although 
not  in  the  possession  of  any  person  8  yet  the  possession 
of  a  mining  claim  upon  which  exploitation  has  been 
abandoned  as  unprofitable  9  or  mere  indications  of 
mineral  before  the  entry  10  will  not  defeat  the  town- 
site  patent. 

1.  Rev.  Stats.,  §  2387.     Townsites  in  Alaska,  see  Circular  33 

L.  D.   163. 

For  a  collection  of  statutes  relating  to  townsites,  see 
38  L.  D.  92;  Townsite  Reg.,  38  L.  D.  107;  see  Repinsky 
v.  Hinchman,  181  Fed.  786. 

2.  Rev.  Stats.,  §  2387. 

3.  Id. 

4.  Id.     See  Amador  Co.  v.  Gilbert,  133  Cal.  51. 

5.  26   Stats.    1101;   see  Steel  v.   St.   Louis   Co.,   106   U.   S.   447; 

Bonner  v.  Meikle,  82  Fed.  697;  38  L.  D.  114;  Poire  v. 
Wells,  6  Colo.  406,  Traphagen  v.  Kirk,  30  Mont.  562. 

That  a  placer  claim  may  be  used  as  a  townsite;  see 
Steel  v.  St.  Louis  Co.,  ante. 

A  "valid  mining  claim  or  possession"  is  any  valid 
mining  claim  or  possession  held  under  existing  law. 
Callahan  v.  James,  141  Cal.  291;  see  Blackmore  v. 
Reilly,  2  Ariz.  442;  Tombstone  cases,  2  Ariz.  272.  In 
controversies  between  mineral  and  townsite  claimants 
the  terms  "lands  known  to  be  valuable  for  mineral," 
"mineral  deposits,"  "known  mines,"  "land  containing 
known  mines,"  are  equivalent  in  meaning.  If  lands 
are  known  to  be  of  that  character  at  the  time  of  the 
townsite  entry  no  title  thereto  will  pass  thereunder. 
Brady's  Mortgagee  v.  Harris,  29  L.  D.  426. 

6.  Davis  v.  Weibbold,  139  U.  S.  507;  Dower  v.  Richards,  151 

U,  S.  658;  Mill  Side  Lode,  39  L.  D.  356. 

7.  Brophy  v.  O'Hare,   34  L.  D.  596 

8.  Callahan  v.  James,  ante. 

9.  Richards   v.   Dower,    81   Cal.    44;    see    Callahan   v.    James, 

ante. 
10.  Harkrader  v.  Goldstein,  31  L.  D.   87. 

§  136.  Adverse  Suits.  Adverse  suits  are  not  nec- 
essary between  townsite  and  mineral  claimants.1 

1.  Lalande  v.  Saltese,  32  L.  D.  211;  Nome  &  Sinook  Co.  v. 
Townsite,  34  L.  D.  276;  Wright  v.  Town,  13  Wyo.  497; 
see  Young  v.  Goldsteen,  97  Fed.  303. 


§  138]  TUNNEL  SITES.  185 

CHAPTEE  XXI. 

TUNNEL    SITES. 

§138.  In  general  —  beyond  boundaries  —  assessment  work  — 
location  of  tunnel — location  of  blind  veins — prior  loca- 
tion— adverse  location — line  of  tunnel — no  annual  ex- 
penditure— abandonment — patent. 

§  139.   Dump. 

§  138.  In  General.  A  tunnel  site,  sometimes 
termed  a  "mining  claim/'  x  may  be  located  in  unap- 
propriated territory  for  the  discovery  of  blind  veins 
or  lodes,  not  previously  known  to  exist  therein,  but 
without  inherent  right  in  prosecuting  such  work  to 
enter  through  property  adversely  held.2 

2.  BEYOND  BOUNDARIES.    A  tunnel,  outside  of  the 
boundaries  of  a  lode  claim  may  be  run  by  the  owner 
of  the  latter  for  the  development  of  a  vein  or  lode 
therein.3 

3.  ASSESSMENT  WORK.    Work  done  in  such  a  tun- 
nel may  be  counted  as  assessment  work  upon  a  lode 
claim  or  a  group  of  contiguous  locations.4 

4.  LOCATION  OF  TUNNEL.    The  mining  act  does  not 
provide  how  a  tunnel  site  shall  be  located.     It  leaves 
the  matter  to  local  statute  or  district  rule.5 

5.  LOCATION  OF  BLIND  VEINS.     When  discovered 
in  the  tunnel,  blind  veins  or  lodes  may  be  located  to 
the  same  extent  and  subject  to  the  same  proceedings 
as  if  discovered  upon  the  surface,  without  further  dis- 
covery.6    The  tunnel  claimants'  rights  thereto  relate 
back  to  the  date  of  the  location  of  the  tunnel-site.7 

6.  PRIOR  LOCATION.     Blind  veins  within    a    prior 
lode  location  are  not  subject  to  any  right  in  the  tun- 
nel claimant.8 

7.  ADVERSE  LOCATION.     A  location  of  blind  veins 
or  lodes  on  the  "line"  of  the  tunnel,  made  by  other 
parties,  subsequent  to  the  commencement  of,  and  while 
work  is  being  prosecuted  on  the  tunnel  is  invalid.9 


186  TUNNEL   SITES.  [Ch.  21 

8.  LINE  OF  TUNNEL.     The  "line"  of  the  tunnel  is 
its  width  as  designated  by  boundary  marks.10 

9.  No    ANNUAL    EXPENDITURE.      No    "assessment 
work"  is  required  on  a  tunnel-site. 

10.  .  ABANDONMENT.     Failure    to    prosecute    work 
with  reasonable  diligence  for  6  months  is  an  abandon- 
ment of  the  right  to  all  blind  veins  or  lodes  on  the  line 
thereof,    not    previously    discovered    by    the    tunnel 
claimant.11 

11  PATENT.  A  tunnel  site  cannot  be  patented. 
It  may  be  made  the  subject  of  an  "adverse"  claim.12 
Money  expended  in  running  the  tunnel  is  counted  in 
an  application  for  patent  for  veins  or  lodes  discovered 
therein  at  the  rate  of  $500  for  each  lode  or  vein  ap- 
plied for.13 

1.  Creede  Co.  v.  Uinta  Co.,  196  U.  S.  337;  see  Back  v.  Sierra 

Nev.  Co.,  2  Ida.   (Hasb.)   420. 

2.  Calhoun   Co.   v.   Ajax  Co.,   182   U.   S.   499;     S't.   Louis   Co.   v. 

Mont.  Co.,  194  U.  S.  235;    Fissure  Co.  v.  Old  Susan  Co., 
22  Utah  438. 

3.  Calhoun  Co.  v.  Ajax  Co.,  ante;    Fissure  Co.  v.  Old  Susan 

Co.,  ante. 

4.  18  Stats.  315;  Hain  v.  Mattes,  34  Colo.  345. 

5.  Creede  Co.  v.  Uinta  Co.,  ante. 

The  Californian  mining  act  provides  that  "The  loca- 
tor of  a  tunnel  right  or  location,  shall  locate  his  tun- 
nel right  or  location  by  posting  a  notice  of  location  at 
the  place  or  point  of  commencement  of  the  tunnel, 
which  must  contain:  First.  The  name  of  the  locator 
or  locators.  Second.  The  date  of  the  location.  Third. 
The  proposed  course  or  direction  of  the  tunnel.  Fourth. 
A  description  of  the  tunnel,  with  reference  to  some 
natural  object  or  permanent  monument  as  shall  iden- 
tify the  claim  or  tunnel  right.  C.  C.,  §  1426e. 

The  boundary  lines  of  the  tunnel  shall  be  estab- 
lished by  stakes  or  monuments  placed  along  the  lines 
at  an  interval  of  not  more  than  600  feet  from  the  face 
or  point  of  commencement  of  the  tunnel  to  the  ter- 
minus of  3000  feet  therefrom."  C.  C.,  §  1426f. 

A  true  copy  of  the  location  notice  must  be  filed  with 
the  proper  county  recorder  within  30  days  after  post- 
ing the  notice.  C.  C.,  §  1426g. 

6.  Calhoun  Co.  v.  Ajax  Co.,  ante. 

7.  Glacier    Co.    v.    Willis,    127    U.    S.    471;     Enterprise    Co.    v. 

Rico-Aspen  Co.,  167  U.  S.  108;    Calhoun  Co.  v.  Ajax  Co., 
ante. 

8.  Calhoun  Co.  v.  Ajax  Co.,  ante. 

9.  Hope  v.  Brown,  11  Mont.  370. 

10.   Enterprise   Co.    v.    Rico-Aspen   Co.,    ante;    Corning   Co.    v. 
Pell,  4  Colo.  507;  Back  v.  Sierra  Nev.  Co.,  ante. 


§  139]  DUMP.  187 

11.  Rev.    Stats.,    §2323;     Enterprise    Co.    v.    Rico-Aspen    Co., 

ante;    Hope  v.  Brown,  ante. 

12.  Iron  Co.  v.  Mike  &  Starr  Co.,  143  U.  S.  394;    Creede  Co.  v 

Uinta  Co.,  ante. 

13.  Zephyr  Claims,   30  L.  D.  510. 

§  139.  Dump.  There  is  no  provision  in  the  law 
whereby  a  tunnel-site  claimant,  as  such,  may  acquire 
ground  for  dumping  purposes  prior  to  the  discovery 
of  a  vein  or  lode  within  the  tunnel  area. 


CHAPTER  XXII. 

WATER  RIGHTS. 

§141.  Real  property  —  what  may  be  appropriated  —  volume 
and  extent — public  grants — private  grants. 

§  142.  Rights  of  way. 

§143.  Appropriation  —  different  systems  —  compliance  with 
local  statute — no  constructive  appropriations — meas- 
ure of  right — non-user — adverse  user — interruption 
of  right — prescriptive  right. 

§144.  Diversion  of  water  —  adjacent  water — -pollution  of 
water. 

§  145.  Nuisance. 

§  146.  Tide  lands — not  subject  to  location — temporary  pos- 
session. 

§  141.     Real    Property.      Water    rights    are    real 
property.1 

2.  WHAT   MAY   BE   APPROPRIATED.      All    surplus 
waters  over  and  above  that  necessarily  used  for  the 
purpose  of  irrigation  and  reclamation  of  desert  land; 
part  of  the  public  domain,  together  with  the  waters 
of  all  lakes,  rivers  and  other  sources  of  water  supply 
upon  the  public  land  and  nqt  navigable,2  or  elsewhere, 
when  not  appropriated,  or  in  which  no  other  person 
has  or  claims  superior  rights  and  interests,  and  by  the 
latter  only  as  far  as  there  is  a  conflict,  may  be  ap- 
propriated for  mining  purposes.3 

3.  VOLUME  AND  EXTENT.    The  volume  or  extent  of 
the  water  is  immaterial.    It  may  run  upon  or  beneath 
the  surface  of  the  land  4  but  it  must  be  separate  and 
distinct  from  the  soil,  whether  produced  by  percola- 
tion, filtration  or  otherwise.5 


188  WATER  RIGHTS.  [Ch.  22 

4.  PUBLIC  GRANTS.    Grants  of  the  public  lands  by 
the  government  are  made  subject  to  all  water  rights 
that  may  have  previously  accrued  to  any  person  other 
than  the  patentee.0 

5.  PRIVATE  GRANTS.     Conveyances  of  water  rights 
or  agreements  in  relation  thereto  must  be  in  writing.7 

1.  Bree  v.  Wheeler,  4  Cal.  A.  109;    see  Parks  Co.  v.  Hoyt,  57 

Cal.  44;  Ball  v.  Kehl,  95  Cal.  606;  Wyatt  v.  Larimer 
Co.,  18  Colo.  298;  see,  generally,  Jennison  v.  Kirk,  98 
U.  S.  453;  Howell  v.  Johnson,  89  Fed.  556;  Mohl  v. 
Lamar  Co.,  128  Fed.  776.  As  to  water  rights  in  the 
Philippine  Islands,  see  33  Stats.  692. 

2.  19  Stats.  377;   Gutierres  v.  Albuquerque  Co.,   188  U.  S.   545; 

Krall  v.  U.  S.,  79  Fed.   241. 

3.  U.  S.  v.   Conrad  Co.,   156  Fed.   123;  Duckworth  v.  Watson- 

ville  Co.,  150  Cal.  520;  see,  generally,  Schwab  v.  Beam, 
86  Fed.  41;  Rodgers  v.  Pitt,  129  Fed.  932;  Davis  v.  Gale, 
32  Cal.  26;  Fair  Play  Co.  v.  Weston,  29  Colo.  125;  Rip- 
ley  v.  Park,  40  Colo.  129;  Cardelli  v.  Comstock  Co.,  26 
Nev.  284;  Crescent  Co.  v.  Silver  King  Co.,  17  Utah  444. 
In  California  it  is  unlawful  for  any  person,  firm,  asso- 
ciation, OF  corporation  to  transport  or  carry  through 
pipes,  conduits,  ditches,  tunnels,  or  canals  the  water 
of  any  fresh  water  lake,  pond,  brook,  creek,  river,  or 
stream  of  that  state  into  any  other  state,  for  use 
therein.  Action  may  be  brought  through  the  attor- 
ney-general of  the  state  to  prevent  such  proceeding. 
Cal.  Stats.  1911,  p.  271. 

4.  Cross  v.  Kitts,  69  Cal.  217;  see  Harrington  v.  Demaris,   46 

Or.   111. 

5.  Wolfskin    v.    Smith,    5    Cal.    A.    175;   see    S.    P.    R.   Co.  v. 

Dufour,  95  Cal.  615;  see,  generally,  Cross  v.  Kitts, 
ante;  Ely  v.  Ferguson,  91  Cal.  187;  Sullivan  v.  N.  Spy 
Co.,  11  Utah  438;  Dickey  v.  Maddux,  48  Wash.  411;  see 
also  Bear  Lake  Co.  v.  Garland,  164  U.  S.  1. 

6.  Gutierres    v.    Albuquerque    Co.,    ante;    Smith    v.    Hawkins, 

110  Cal.  122;  Duckworth  v.  Watsonville  Co.,  ante;  see 
Shenandoah  Co.  v.  Morgan,  106  Cal.  409;  Sturr  v.  Beck, 
6  Dak.  71;  Nippel  v.  Forker,  26  Colo.  74. 

The  waters  in  a  non-navigable  stream  flowing  over 
the  public  lands  is  a  part  thereof  and  the  national 
government  can  sell  or  grant  the  same  or  the  use 
thereof  separate  from  the  rest  of  the  estate  under 
such  conditions  as  may  seem  to  it  proper.  Howell  v. 
Johnson,  ante;  see  Snyder  v.  Colo.  Co.,  181  Fed.  62. 

7.  See  note  1,  ante. 

§  142.  Rights  of  Way.  Rights  of  way  may  be  ob- 
tained through  the  public  lands,  forest  and  other  re- 
servations of  the  United  States,  and  the  national  parks 
of  California,  for  electrical  plants,  poles  and  lines  for 
the  generation  and  distribution  of  electrical  power, 


§  143]  APPROPRIATION.  189 

etc.,  and  for  canals,  ditches,  pipes,  pipe  lines,  flumes, 
tunnels  or  other  water  conduits,  and  for  water  plants, 
dams  and  reservoirs  used  to  promote  mining  and  for 
the  reduction  and  milling  of  ores.1 

1.   3  Stats.  790;   33  Stats.  628.     See  Instructions,   39  L.  D.  334. 


§  143.  Appropriation.  The  appropriation  and  use 
of  water  are  regulated  by  local  statutes  which  vary 
in  effect  and  detail.1 

2.  DIFFERENT  SYSTEMS.     The  different  systems  in 
effect  in  different  states  are  termed  the  "California 
doctrine"  and  the  "Colorado  doctrine."  2 

3.  COMPLIANCE  WITH  LOCAL  STATUTE.    The  rights 
of  the  appropriator  do  not  wholly  depend  upon  his 
compliance  with  the  provisions  of  the  local  statute  ;3 
a  valid  right  may  be  acquired  to  water  upon  the  pub- 
lic domain  without  strict  observance  thereof.4 

4.  No   CONSTRUCTIVE  APPROPRIATION.    There   can 
be  no  constructive  appropriation  of  water.5 

5.  MEASURE  OF  EIGHT.     It  is  the  extent  of  the 
water  and  not  the  amount  claimed  in  the  notice  of  ap- 
propriation which  is  the  measure  of  the  appropriator's 
right.6     Actual  user  for  a  beneficial  purpose  is  the 
true  and  only  test  touching  the  question  whether  or 
not  the  claim  has  ripened  into  a  valid  appropriation.7 

6.  NON-USER.     Non-user  will  not  bar  the  right  to 
water  unless  continued  for  the  time  which  will  bar  an 
action  to  recover  real  property.8 

7.  ADVERSE  USER.    An  adverse  use  of  water  for  the 
statutory  period  of  limitation  must  be  open,  notorious, 
peaceable,  continuous,  and  under  a  claim  or  color  of 
right.     The  gradual  and  imperceptible  encroachment 
by  a  subsequent  appropriator  will  not  raise  the  bar 
of  the  statute.9 

8.  INTERRUPTION  OF  RIGHT.    If  any  act  is  done  by 
other  parties  claiming  the  water  that  operates  as  an 


190  WATER   RIGHTS.  [Ch.  22 

interruption,  however  slight,  it  prevents  the  acquisi- 
tion of  any  adverse  right.10 

9.  PRESCRIPTIVE  RIGHT.  The  right  acquired  by 
prescription  is  only  commensurate  with  the  right  en- 
joyed. The  extent  of  the  enjoyment  measures  the 
right.11 

1.  Snyder  v.  Colo.  Co.,  181  Fed.  62.  (Californian  law  of  Ap- 
propriation. C.  C.  §§ 1410-1422.) 

§  1410.  All  water  or  the  use  of  water  within  the 
State  of  California  is  the  property  of  the  people  of  the 
State  of  California,  but  the  right  to  the  use  of  run- 
ning water  flowing  in  a  ravine  or  stream  or  down  a 
canyon  or  ravine  may  be  acquired  by  appropriation 
in  the  manner  provided  by  law,  provided  that  no 
water  for  the  generation  of  electricity  or  electrical  or 
other  power  may  be  appropriated  for  a  longer  period 
than  25  years,  except  by  a  municipal  corporation, 
other  than  an  irrigation  district  or  a  lighting  district, 
or  by  an  irrigation  district  when  such  electricity, 
electrical  or  other  power  is  for  use  and  distribution 
only  within  its  own  limits,  and  as  subject  to  and  mainly 
for  the  purpose  of  serving  and  carrying  out  irriga- 
tion or  by  a  lighting  district  when  such  electricity, 
electrical  or  other  power  is  for  use  and  distribution 
only  within  its  own  limits.  (Amended  April  8,  1911.) 

§  1411.  The  appropriation  must  be  for  some  useful 
or  beneficial  purpose,  and  when  the  appropriator  or 
his  successor  in  interest  ceases  to  use  it  for  such  a 
purpose,  the  right  ceases. 

§  1412.  The  person  entitled  to  the  use  may  change 
the  place  of  diversion,  if  others  are  not  injured  by 
such  change,  and  may  extend  the  ditch,  flume,  pipe 
or  aqueduct  by  which  the  diversion  is  made  to  places 
beyond  that  where  the  first  use  was  made. 

§  1413.  The  water  appropriated  may  be  turned  into 
the  channel*  of  another  stream  and  mingled  with  its 
water,  and  then  reclaimed;  but  in  reclaiming  it  the 
water  already  appropriated  by  another  must  not  be 
diminished. 

§  1414.  As  between  appropriators,  the  one  first  in 
time  is  the  first  in  right. 

§  1415.  A  person  desiring  to  appropriate  water 
must  post  a  notice  in  writing,  in  a  conspicuous  place 
at  the  point  of  intended  diversion,  stating  therein: 

1.  That    he    claims    the    water   there    flowing    to    the 
extent  of  (giving  the  number)  inches,  measured  under 
a  four  inch  pressure; 

2.  The    purposes    for    which    he    claims    it,    and    the 
place  of  intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,   and 
the  size  of  the  flume,  ditch,  pipe,  or  aqueduct  in  which 
he   intends   to   divert   it.     A  copy   of   the   notice   must, 
within  ten  days  after  it  is  posted,   be  recorded  in  the 
office    of    the    recorder    of    the    county    in    which    it    is 
posted.      After   filing   such    copy   for   record,    the   place 


i  143]  APPROPRIATION.  191 

of  intended  diversion  or  the  place  of  intended  use  or 
the  means  by  which  it  is  intended  to  divert  the  water, 
may  be  changed  by  the  person  posting  said  notice  or 
his  assigns,  if  others  are  not  injured  by  such  change. 
This  provision  applies  to  notices  already  filed  as  well 
as  to  notices  hereafter  filed. 

§  1416.  Within  sixty  days  after  the  notice  is  posted, 
the  claimant  must  commence  the  excavation  or  con- 
struction of  the  works  in  which  he  intends  to  divert 
the  water,  or  the  survey,  road  or  trail  building  neces- 
sarily incident  thereto,  and  must  prosecute  the  work 
diligently  and  uninterruptedly  to  completion,  unless 
temporarily  interrupted  by  snows  or  rain;  provided, 
that  if  the  erection  of  a  dam  has  been  recommended 
by  the  California  debris  commission  at  or  near  the 
place  where  it  is  intended  to  divert  the  water,  the 
claimant  shall  have  sixty  days  after  the  completion 
of  such  dam  in  which  to  commence  the  excavation  or 
construction  of  the  works  in  which  he  intends  to 
divert  the  water;  and  provided  further,  that  if  it 
shall  be  necessary,  by  proceedings  in  eminent  domain, 
to  acquire  water  rights  held  by  adverse  riparian 
owners  or  to  acquire  sites  for  dams  or  power  plants 
at  the  point  of  intended  diversion  or  the  point  of 
intended  use,  as  described  in  the  notice  of  appropria- 
tion of  said  water,  or  if  there  shall  be  "conflicting 
claims  to  the  waters  so  appropriated,  then  the  party 
so  appropriating,  or  his  assigns,  shall  have  sixty 
days  after  the  determination  of  legal  proceedings  by 
final  judgment  in  which  to  commence  to  excavate  or 
construct  the  works  in  which  he  intends  to  divert  the 
water  as  provided  in  this  section;  and  provided  fur- 
ther, that  if  suits  for  such  purpose  are  not  already 
pending  at  the  date  of  the  passage  of  this  act,  they 
shall  be  commenced  within  sixty  days  after  this  act 
takes  effect,  and  as  to  future  appropriations  of  water, 
within  sixty  days  after  notice  of  such  appropriation 
is  posted  as  required  by  law;  and  such  proceedings 
shall  be  prosecuted  diligently  to  final  judgment;  but 
nothing  in  this  act  shall  be  construed  to  revive  or 
renew  appropriations  of  water  heretofore  made  which 
have  been  abandoned  and  lost,  as  against  subsequent 
claimants  who  have  complied  with  this  act.  Amended 
(May  1,  1911)  as  to  time  for  commencement  of  work 
by  municipalities. 

§  1417.  By  "completion"  is  meant  conducting  the 
waters  to  the  place  of  intended  use. 

§  1418.  By  a  compliance  with  the  above  rules  the 
claimant's  right  to  the  use  of  the  water  relates  back 
to  the  time  the  notice  was  posted. 

§  1419.  A  failure  to  comply  with  such  rules  deprives 
tlte  claimants  of  the  right  to  the  use  of  the  water  as 
against  a  subsequent  claimant  who  complies  there- 
with. 

§  1420.  Persons  who  have  heretofore  claimed  the 
right  to  water  and  who  have  not  constructed  works 
in  which  to  divert  it,  and  who  have  not  diverted  not- 
applied  it  to  some  useful  purpose,  must,  after  this 
title  takes  effect  and  within  twenty  days  thereafter, 
proceed  as  in  this  title  provided,  or  their  right  ceases. 


192  WATER   RIGHTS.  [Ch.  22 

§  1421.  The  recorder  of  each  county  must  keep  a 
book,  in  which  he  must  record  the  notices  provided 
for  in  this  title. 

§  1422.  If  the  place  of  intended  diversion  or  any  part 
of  the  route  of  intended  conveyance  of  water  so 
claimed,  be  within,  and  a  part  of,  any  national  park, 
forest  reservation,  or  other  public  reservation,  and 
be  so  shown  in  the  notice  of  appropriation  of  said 
water,  then  the  claimant  shall  have  sixty  days,  after 
the  grant  of  authority  to  occupy  and  use  such  park 
or  reservation  for  such  intended  purpose,  within 
which  to  commence  the  excavation  or  construction  of 
said  works;  provided  that  within  sixty  days  after  the 
posting  of  said  notice  of  appropriation,  as  provided 
in  section  1415  of  the  Civil  Code,  the  claimant  shall 
in  good  faith  commence  (and  thereafter  diligently 
and  continuously,  except  when  temporarily  inter- 
rupted by  snow  or  rain,  prosecute  to  completion)  such 
surveys  and  other  work  as  under  the  regulations 
governing  such  park  or  reservations,  may  be  required 
as  preliminary  to,  or  for  use  with,  an  application  for 
such  authority;  and  provided  also  that  the  claimant 
shall  in  good  faith  on  completion  of  said  survey  and 
preliminary  work,  apply  to  the  officer,  board  or  body, 
having  charge  of  such  park  or  reservation,  for  such 
authority,  and  shall  thereafter,  prosecute  said  applica- 
tion with  reasonable  diligence.  See  §  141,  notes  3  and 
6,  ante. 

The  appropriation  of  water  within  the  S'tate  of 
California  for  generating  electricity  or  electrical  or 
other  power  is  subject  to  the  provisions  of  an  act  of 
the  legislature  of  that  state,  that  went  into  effect  on 
April  8,  1911.  This  act,  among  other  things,  regu- 
lates, limits,  fixes  the  terms  and  conditions  and  pro- 
vides the  manner  of  procedure  of  its  appropriation 
and  use  for  such  purposes.  Cal.  Stats.  1911,  p.  813. 

2.  Willey  v.  Decker,   11  Wyo.   496;    see  Snyder  v.  Colo.  Co., 

ante. 

3.  Wells  v.  Mantes,  99  Cal.  583. 

4.  S.   P.  Mines  v..  Valcalda,   79   Fed.   886. 

5.  Nev.   Ditch  Co.  v.   Bennett,   30  Or.   59. 

6.  Duckworth   v.  Watsonville  Co.,   150   Cal.   520. 

7.  Snyder  v.  Colo.  Co.,  ante;    Nev.  Ditch  Co.  v.  Bennett,  ante. 

8.  Oviatt  v.  Big  4  Co..   39  Or.   118;   see  Featherman  v.  Hen- 

nessy,    (Mont.)    113  Pac.  751. 

9.  Union   Co.  v.  Dangberg,   81  Fed.   73;  Morris  v.  Beam,   146 

Fed.  423. 

10.  Union  Co.  v.  Dangberg,  ante. 

11.  Id. 

§  144.  Diversion  of  Water.  Water  appropriated 
under  the  provisions  of  a  local  statute  may  be  diverted 
to  the  place  of  intended  use  although  within  the  public 
lands  or  upon  a  subsequent  homestead  entry  or  claim.1 

The  point  of  diversion  or  the  place  or  character  of 


§  146]  TIDE  LANDS.  193 

use 2  may  be  changed  if  without  prejudice  to  pre- 
existing or  intervening  rights.3 

2.  ADJACENT  WATER.    The  right  to  water  adjacent 
to  a  placer  location  does  not  necessarily  attach  thereto 
although  it  may  be  necessary  for  the  successful  work- 
ing of  the  claim.4 

3.  POLLUTION  OF  WATER.     Water  may  not  be  un- 
reasonably polluted  5  nor  be  used  in  a  way  detrimental 
to  others.6 

1.  Wolfskill  v.  Smith,   5  Cal.  A.   175. 

2.  Kidd  v.  Laird,  15  Cal.  162;  Hargrave  v.  Cook,  108  Cal.  72; 

New  Cache  Co.  v.  Water  Co.,  (Colo.)  Ill  Pac.  610;  Mea- 
gher  v.  Hardenbrook,  11  Mont.  385. 

3.  Last  Chance  Co.  v.  Bunker  Hill  Co.,  49  Fed.  430:    Snyder  v. 

•  Colo.  Co.,  181  Fed.  62.     See  Porters  Bar  Dredging  Co.  v. 
Beaudry,    (Cal.  A.)    115  Pac.  951. 

4.  Legatt  v.   Carroll,    30  Mont.   384:   see   Snyder  v.   Colo.   Co., 

ante;    see  Schwab  v.  Beam,  86  Fed.  41;    Davis  v.  Gale, 
32  Cal.  26. 

5.  Crane  v.  Winsor,   2  Utah   248. 

6.  Woodruff   v.   N.    Bloomfield    Co.,    18    Fed.    753;    Williams    v. 

Halle  Co.,   (S.  C.)  71  S.  E.  26. 

§  145.  Nuisance.  All  unlawful  intrusions  upon  a 
waterway  for  purposes  unconnected  with  the  rights  of 
navigation  or  passage  are  nuisances.1 

1.  People  v.  Gold  Run  Co.,  66  Cal.  138;  see,  generally,  Travis 
Co.  v.  Mills,  94  Fed.  909;  Alaska  Co.  v.  Barbridge,  1 
Alaska.  311;  Jones  v.  Robertson,  116  111.  543;  Lord  v. 
Carbon  Co.,  38  N.  J.  Eq.  452. 

§  146.  Tide  Lands.  Lands  "under  tide  water"  or 
"below  high  water  mark/'  "lands  flowed  by  the  tide," 
and  other  expressions  of  similar  import  are  usually 
employed  in  defining  tide  lands.1  The  term  "shore 
line"  means  mean  hiorh  water  line.2 

2.  NOT  SUBJECT  TO  LOCATION.     Lands  under  tide 
water  are  vested  in  the  United  States  3  and  are  not 
subject  to  location  under  the  mining  laws.4 

3.  TEMPORARY    POSSESSION.      In    the    District    of 
Alaska  temporary  possession  of  tide  lands  may  be  had 
for  mining  purposes.     Such  occupation  is  subject  to 
such  general  limitations  as  may  be  necessary  to  ex- 


194  WATER   RIGHTS.  [Ch.  22 

empt  navigation  from  artificial  obstruction.5  Mill-site 
locations  may  not  be  made  in  said  district  within  60 
feet  of  the  shore  line  of  navigable  waters.6 

1.  Shively  v.   Bowlby,   152   U.   S.    1.      In   California  the   words 

"tide  lands"  do  not  apply  to  or  include  the  shore,  or  any 
part  thereof,  or  the  bed,  or  any  part  thereof,  of  the 
ocean  or  of  any  navigable  canal  or  stream  or  bay  or 
inlet  within  that  state,  between  ordinary  high  and 
low  water  mark.  All  such  land  over  which  the  or- 
dinary tide  ebbs  and  flows  is  withheld  from  sale. 
Pol.  C.,  §3443a;  see  Pearl  Oyster  Co.  v.  Heuston,  57 
Wash.  533. 

2.  Nome   T.    Co.,    29    L.    D.    447.      The    "shore"    is    that    ground 

that  is  between  ordinary  high  and  low  water  mark. 
Columbia  Co.  v.  Hampton,  161  Fed.  60. 

3.  Shively  v.   Bowlby,   ante. 

4.  Jas.  W.  Logan,  29  L.  D.  395;  Argillite  Co.,  29  L.  D.  585. 

5.  31  Stats.  325. 

6.  Alaska  C.   Co.,   32   L.   D.   128. 


CHAPTER  XXIII. 

NATURAL,    OBJECT — PERMANENT    MONUMENT. 

§  149.  Natural  objects — reference. 

§  150.  Permanent  monuments.  / 

§  151.  Purpose — record — presumptions — burden    of   ppoof. 

§  149.  Natural  Objects.  A  natural  obje/ct  is  any 
fixed  natural  object,  as,  an  arm  of  the  sea,  bay,1  blazed 
tree,2  boulder.3  buttes,  canon,4  mouth  of  a  canon,5 
creek,6  cropping,7  gulch,8  the  point  of  intersection  of 
well  known  gulches,  hill,  inlet,  lake  or  river,9  moun- 
tains,10 mountain  peaks,11  pillar  of  rock,12  ravine,13 
ridge  or  hogsback,14  stream,15  the  confluence  of 
streams,16  tree,  when  marked,17  forked  tree/8  stump 
of  tree,19  waterfall  or  cascade.20 

2.  REFERENCE.  It  is  not  always  possible  to  connect 
a  location  with  a  natural  object.  In  such  a  case  ref- 
erence may  be  made  to  a  permanent  monument.21  \ 

1.,  Meydenbauer  v.  Stevens,  78  Fed.  787, 
2?  Drummond  v.  Long,   9  Colo.   538. 
3.  Gamer  v.  Glenn,   8  Mont.  371. 
-4.  Meydenbauer   v.    Stevens,    ante. 

5.  C.  L.  S.  R.  Co.  v.  San  Garde,  7  Ida.  106.  i, 

6.  McKinley  Creek  Co.  v.  Alaska  United   Co.,   183««f.   S.   563; 

Smith   v.    Cascaden,   148   Fed.   792. 


§150]  PERMANENT  MONUMENT&x  195 

7.   Daggett  v.   Yreka  Co.,    149   Cal.   357.        / 
""8.   Flavin  v.   Mattingly,    8   Mont.    242.          Y 

:    9.  Meydenbauer  v.   Stevens,   ante;   Credo  v.  Highland  Co.,   95 
Fed.    911;   Johnson  v.  Dines,   13   Colo.    90. 

10.  Vogel  v.  Warsing,    146  Fed.   949. 

11.  Craig  v.   Thompson,    10  Colo.   517. 

12.  Daggett  v.   Yreka  Co.,   ante. 

13.  Meydenbauer  v.   Stevens,   ante. 

14.  Id. 

15.  Id. 

16.  Drummond  v.   Long,   ante. 

17.  Allen  v.  Dimlap,  24  Or.  229. 

18.  Daggett   v.   Yreka   Co.,   ante. 

19.  McKinley  Creek  Co.  v.  Alaska  United  Co.,   ante;  Daggett 

v.  Yreka  Co.,   ante;  Allen  v.  Dunlap,  ante.     • 

20.  Meydenbauer  v.  Stevens,  ante. 

21.  Mclntosh  v.  Price,  121  Fed.  716.     But  a-  party  in  search  of 

locatable  ground  has  the  right  to  rely  upon  finding 
the  object  or  monument  as  named  in  the  location 
notice.  Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569;  see 
§  185-3,  post. 

§  150.  Permanent  Monuments.  A  permanent 
monument  'may  be  any  artificial  distinctive  mark  or 
object  of  a  lasting  nature  affixed  to  or  carved  from  the 
soil  or  rock,  as,  for  example,  a  city  or  town,1  depot,2  a 
race  track  inclosure,3  a  named  mining  claim,4  per- 
manent monuments  of  a  mining  claim,5  a  cut  or  other 
excavation,  as,  a  drift,6  prospect  hole,7  shaft,8  or  tun- 
nel;9 a  government  monument,10  monuments  of 
stone,11  posts,12  stakes  firmly  planted  in  the  ground,13 
a  pile  of  rocks,14  a  road,15  the  point  of  intersection  of 
roads.16 

1.  McCann  v.  McMillan,  129  Cal.  350. 

•2.  Farmington   Co.  v.   Rhymney  Co.,   20  Utah   363. 

3.  Tiggeman  v.  Mrzlak,  40  Mont.  19. 

4.  Hammer  v.  Garfield  Co.,  130  IT.  S.  291;  see  Riste  v.  Morton, 

20  Mont.   139;  Baxter  v.  Patterson,   3  N.  M.  269. 

5.  Credo  Co.  v.   Highland  Co.,   95   Fed.   911;   So.   Cross  Co.  v. 

Europa  Co.,  15  Nev.  383. 

6.  Meydenbauer  v.   Stevens,   78   Fed.   787. 

7.  Hansen  v.  Fletcher,  10  Utah  266. 

8.  Jupiter  Co.  v.  Bodie  Co.,  11  Fed.  666. 

9.  Meydenbauer  v.  Stevens,  ante. 

10.  Gird  v.  Cal.  Oil  Co.,  60  Fed.   531;  Green  v.  Garvin,   10  Cal. 

A.  .330. 

11.  Talmadge  v.   St.   John,    329   Cal.   430. 

12.  Credo  Co.   v.   Highland   Co.,   ante. 

13.  Hammer  v.  GaYfield  Co.,  ante. 

14.  Temescal  Co.  v.  Salcido,  137  Cal.  211. 

15.  McCann    v.   McMillan,    ante. 

16.  Drummond  v.  Long,   9   Colo.   538. 


196  NATURAL  OBJECT— MONUMENT.  [Ch.  23 

§  151.  Purpose.  The  purpose  of  requiring  the 
record  of  a  mining  claim  to  contain  a  reference  to  a 
natural  object  or  permanent  monument I  is  to  furnish 
an  initial  or  starting  point  for  the  identification  of  the 
location.2 

2.  RECORD.    A  record  which  contains  no  reference 
to  a  natural  object  or  permanent  monument  is  in- 
valid 3  and  inadmissible  in  evidence  for  any  purpose.4 
The  record,  or  possibly,  the  location,  may  be  held  to  be 
void  because  of  the  vague  character  of  the  reference 
in  the  record  to  the  natural  object  or  permanent  monu- 
ment.5    But  mere  imperfections  therein  should  not 
render  either  void.6     The    reference    should    be    in- 
telligible, not  delusive,  meaningless,  or  misleading ; 7 
it  should  identify  the  location  with  reasonable  cer- 
tainty.8    Whether   the    reference    is    sufficient   is    a 
question  of  fact  9  which  may  be  aided  by  oral  testi- 
mony.10 

3.  PRESUMPTIONS.    Generally  speaking,  any  object, 
or  monument  that  will  serve  to  identify  the  location 
will  be  regarded  as  sufficient ;  but  it  is  not  conclusively 
presumed  that  the  same  exists  or  that  the  reference 
thereto  sufficiently  describes  the  location.11 

In  the  absence  of  proof  to  the  contrary  it  will  be 
presumed  that  the  object  or  monument  referred  to  in 
the  record  exists,12  that  it  is  well  known  13  and  best 
serves  to  identify  the  location,14  whether  it  is  on  or  off 
the  location,15  or  was  erected  for  the  purpose  of  tying 
the  location  thereto.16 

4.  BURDEN  OF  PROOF.    The  burden  of  proof  is  upon 
the  party  claiming  the  insufficiency  of  the  reference.17 

1.  Rev.   Stats.,   §  2324. 

2.  Drummond  v.   Long1,    9   Colo.    538;   see  Vogel  v.   Warsing, 

146  Fed.  949;  see,  generally,  §190,  post. 

3.  Faxon  v.  Barnard,   4   Fed.   702;   Fuller  v.  Harris,   29   Fed. 

814;  Mutchmor  v.  McCarty,   149  Cal.   603;  see  M'Intosh 
v.  Price.  121  Fed.  716. 

4.  Golden  Fleece  Co.  v.  Cable  Con.  Co.,  12  Nev.  312. 

5.  Faxon  v.  Barnard,  ante;  Gilpin  Co.  v.  Drake,  8  Colo.  586; 

Drummond  v.  Long,  ante;  Brown  v.  Levan.  4  Ida.  794; 


§154]  DISCOVERY.  197 

Russell  v.  Chumasero,  4  Mont.  309;  Deeney  v.  Mineral 
Creek  Co.,  11  N.  M.  179. 

6.  Bennett  v.   Harkrader,    158   U.    S.    441;   Farmington   Co.   v. 

Rhymney  Co.,   20   Utah  363. 

7.  Dillon  v.  Bayliss,  11  Mont.  171. 

8.  Hammer  v.  Garfield  Co.,  130  U.  S.  291;  N.  Noonday  Co.  v. 

Orient  Co.,  1  Fed.  522;  Jupiter  Co.  v.  Bodie  Con  Co.,  11 
Fed.  666;  Brady  v.  Husby,  21  Nev.  453;  Kahn  v.  Old 
Tel.  Co.,  2  Utah  174. 

It  is  well  recognized  that  the  ties  of  mining  claims 
to  some  natural  object  or  permanent  monument  are 
not,  and  were  not  intended  to  be  as  accurate  and 
correct  as  they  would  be  if  tied  by  a  competent  sur- 
veyor. If  that  were  true  very  few,  if  any,  of  many 
hundreds  of  mining  claims  located  in  good  faith  by 
prospectors  and  miners  would  be  valid.  Bismark  Co. 
v.  No.  Sunbeam  Co.,  14  Ida.  516. 

9.  Eilers  v.  Boatman,   111   U.   S.   356;   Bennett  v.  Harkrader, 

ante;  Metcalf  v.  Prescott,  10  Mont.  283;  Brady  v. 
Husby,  ante. 

10.  Drummond  v.  Long,  ante. 

11.  Londonderry  Co.  v.  United  Gold  Co.,  38  Colo.  480;  Duncan 

v.  Eagle  Rock  Co.,  48  Colo.  539. 

12.  Hammer  v.  Garfield  Co.,  ante;  Smith  v.  Cascaden,  148  Fed. 

792. 

13.  Hammer  v.  Garfield  Co.,  ante. 

14.  McCann  v.  McMillan,  129  Cal.  350. 

15.  N.  Noonday  Co.  v.  Orient  Co.,  ante. 

16.  Brown  v.  Levan,   ante. 

17.  Kinney    v.     Fleming,     6    Ariz.     263.     Monuments    control 

courses  and  distances  only  where  the  monuments  are 
clearly  ascertained.  Duncan  v.  Eagle  Rock  Co.,  ante; 
see  Meydenbauer  v.  Stevens,  78  Fed.  787. 


CHAPTER  XXIV. 

DISCOVERY. 

§  154.  In  general — location  not  complete  without  discovery — 
requisites  of  discovery — discovery  may  be  insufficient 
— bisected  discovery  —  single  discovery  in  placer 
claim — place  of  discovery — absence  of  discovery. 

§  155.  Character  of  lo'de  discovery. 

§  156.  Development  of  discovery — local  provisions — essential 
act  of  location — discovery  shaft. 

§157.  Proof  of  discovery  —  rule  between  rival  claimants  — 
reason  for  rule — test — contests  between  mineral 
claimants — mineralogical  and  geological  conditions — 
supplementary  evidence — testimony — discovery  point 
— expert  testimony — conclusive  testimony — negative 
testimony. 

§  158.  Loss  of  discovery — sale  before  discovery — sale  after 
discovery. 

§  154.  In  General.  Discovery  is  one  of  the  sources 
of  title  to  both  lode  and  placer  claims.1  It  may  be 
original  or  adopted  2  but  it  must  be  actual.3  It  can- 


198  DISCOVERY.  [Ch.  24 

not  rest  upon  a  mere  guess,4  nor  be  based  upon  con- 
jecture or  the  imaginary  existence  of  mineral.5 

2.  LOCATION  NOT  COMPLETE  WITHOUT  DISCOVERY. 
No  location  is  complete  without  discovery  therein  G  but 
it  is  not  necessarily  the  first  act  of  location.7     In  the 
absence  of  an  intervening  right  discovery  subsequent 
to  the  other  acts  of  location  will  validate  the  claim.8 

3.  REQUISITES  OF  DISCOVERY.     There  must  be  rea- 
sonable evidence  of  a  vein  or  lode  carrying  mineral 
in  a  lode  location  or  that  it  is  valuable  for  placer  min- 
ing if  located  as  a  placer  claim.9 

4.  DISCOVERY  MAY  BE  INSUFFICIENT.    A  discovery 
may  be  sufficient  to  sustain  a  location  10  but  may  not 
be  sufficient  to  sustain  a  claim  of  extra-lateral  right,11 
nor,  in  either  a  lode  or  placer  location  to  defeat  the 
claim  of  an  "agricultural"  claimant.12 

5.  BISECTED   DISCOVERY.     A    single    discovery   bi- 
sected by  an  end  line  common  to  two  lode  claims  may 
be  sufficient.13 

6.  SINGLE  DISCOVERY  IN  PLACER  CLAIM.    A  single 
discovery  is  sufficient  in  each  placer  location,   irre- 
spective of  the  character  of  deposit  or  size  of  the  loca- 
tion   except   that   before    patent    each    10-acre    tract 
therein  found    to    be    non-mineral  may  be  excluded 
therefrom.14 

7.  PLACE  OF  DISCOVERY.    Discovery  may  be  made 
upon  the  surface,15  or  in  a  tunnel,16  or  in  a  shaft,17 
or  be  deep  in  the  ground.18     A  secret  underground 
discovery  will  not  prevail  against  a  previously  located 
surface  discovery.19 

8.  ABSENCE  OF  DISCOVERY.    In  the  absence  of  dis- 
covery the  locator's  rights  depend  upon  actual  pos- 
session and  diligent  prosecution  of  the  work  of  dis- 
covery.20    Otherwise  the  claim  is  subject  to  location 
peaceably  and  openly  made  by  another.21     The  one 
first  making  the  discovery  has  the  full  right  to  the 
claim.22 


§  154  DISCOVERY.  .  199 

1.  O'Reilly  v.  Campbell,   116  U.  S.   418;   Lawson  v.  U.  S.  Co., 

207  U.  S.  1;  Chrisman  v.  Miller,  197  U.  S.  313;  Nev. 
Sierra  Oil  Co.  v.  Miller,  97  Fed.  681;  Nev.  Sierra  Oil 
Co.  v.  Home  Oil  Co.,  98  Fed.  673;  Steele  v.  Tanana  Co., 
148  Fed.  678;  Lange  v.  Robinson,  148  Fed.  799;  New 
England  Co.  v.  Congdon,  152  Cal.  211. 

The  term  "discovery"  has  a  technical  meaning  in 
mining.  Upton  v.  Larkin,  7  Mont.  449;  see  McLemore 
v.  Express  Co.,  158  Cal.  559.  A  mineral  discovery 
subsequent  to  the  grant  of  the  title  by  the  United 
States  does  not  affect  the  title  nor  give  the  discoverer 
any  right.  Shaw  v.  Kellogg,  170  U.  S.  312;  Janette  W. 
Riley,  33  L.  D.  68. 

2.  Book  v.   Justice   Co.,    58   Fed.    106;   Nev.   Sierra   Oil   Co.   v. 

Home  Oil  Co.,  ante;  Willeford  v.  Bell,  (Cal.)  49  Pac.  6; 
McMillen  v.  Ferrum  Co.,  32  Colo.  38;  Hayes  v.  Lavag- 
nino,  17  Utah  185. 

3.  King  v.  Amy  Co.,  152  U.  S.  222;    Chrisman  v.  Miller,  ante; 

Smith  v.  Newell,  86  Fed.  56;  Tuolumne  Co.  v.  Maier, 
134  Cal.  583;  Copper  Globe  Co.  v.  Allman,  23  Utah,  410. 

4.  Erhardt   v.    Boaro,    113    U.    S.    527;    Larkin   v.    Upton,    144 

U.  S.  19;  Waterloo  Co.  v.  Doe,  56  Fed.  685;  Copper 
Globe  Co.  v.  Allman,  ante. 

5.  King  v.  Amy  Co.,  ante;  Ambergris  Co.  v.  Day,  12  Ida.  108. 

6.  Creede  Co.  v.  Uinta  Co.,  196  U.   S.   337;  McLemore  v.  Ex- 

press Co.,  ante;  see  also  Nev.  Sierra  Oil  Co.  v.  Home 
Oil  Co.,  ante;  Walton  v.  Wild  Goose  Co.,  123  Fed.  209; 
Miller  v.  ChrismaLn,  140  Cal.  440;  Dwinnell  v.  Dyer, 
145  Cal.  12;  Harper  v.  Hill,  (Cal.)  113  Pac.  162;  Healey 
v.  Rupp,  37  Colo.  25;  Cedar  Canyon  Co.  v.  Yarwood,  27 
Wash.  271. 

That  discovery  and  assessment  work  are  not  equiva- 
lent, see  McLemore  v.  Express  Co.,  ante. 

7.  Creede  Co.  v.  Uinta  Co.,  ante;  Nev.  Sierra  Oil  Co.  v.  Home 

Oil  Co.,  ante;  Uinta  Co.  v.  Creede  Co.,  119  Fed.  164; 
Waskey  v.  Hammer,  170  Fed.  31;  Heman  v.  Griffith,  1 
Alaska  264;  Brockbank  v.  Albion  Co.,  29  Utah  367; 
New  England  Co.  v.  Congdon,  ante;  Cedar  Canyon  Co. 
v.  Yarwood,  ante. 

8.  Jupiter   Co.   v.    Bodie   Con.    Co.,    11   Fed.    666;   Nev.   Sierra 

Oil  Co.  v.  Home  Oil  Co.,  ante;  Beals  v.  Cone,  27  Colo. 
473;  Healey  v.  Rupp,  ante. 

9.  Chrisman  v.  Miller,   ante;   Cascaden  v.  Bartolis,   146  Fed. 

739;  Lange  v.  Robinson,  ante;  Steele  v.  Tanana  Co., 
ante;  Harper  v.  Hill,  ante. 

10.  O'Donnell    v.    Glenn,    8    Mont.    248;    see    also    Cascaden   v. 

Bartolis,   ante;   Muldrick  v.   Brown,   37   Or.   185. 

11.  Grand  Cent.  Co.  v.  Mammoth  Co.,  29  Utah  490. 

12.  Brophy  v.  O'Hare,  34  L.  D.   596. 

13.  Larkin  v.  Upton,  ante;  Tiggeman  v.  Mrzlak,  40  Mont.  19; 

see  Poplar  Creek,  16  L.  D.  1;  Reynolds  v.  Pascoe,  24 
Utah  219. 

14.  Ferrell  v.  Hoge,  27  L.  D.  129;  Reins  v.  Raunheim,  28  L.  D. 

526;  American  Co.,  39  L.  D.  299;  McDonald  v.  Mont. 
Wood  Placer  Co.,  14  Mont.  88. 

15.  Score    v.    Griffin,    9    Ariz.    295;    Davidson    v.    Bordeaux,    15 

Mont.  245;  Fox  v.  Myers,  29  Nev.  169;  Harrington  v. 
Chambers,  3  Utah  94;  Columbia  Co.  v.  Duchess  Co., 
13  Wyo.  244. 


200  -  DISCOVERY.  [Ch.  24 

16.  Pelican  Co.  v.   Snodgrass,   9  Colo.  339;   Brewster  v.  Shoe- 

maker,  28   Colo.   176. 

17.  Enterprise  Co.  v.  Rico-Aspen  Co.,  167  U.  S.  108. 

18.  Hayes  v.  Lavagnino,   ante. 

19.  McMillen  v.  Ferrum  Co.,  ante. 

20.  Johanson    v.    White,    160    Fed.    901;    Phillips    v.    Brill,    17 

Wyo.  26;  see  Hanson  v.  Craig1,  170  Fed.  62. 

21.  Miller  v.   Chrisman,   ante;   New  England  Co.   v.   Congdon, 

ante;  Whiting  v.   Straup,  17  Wyo.  1. 

22.  Johanson  v.  White,  ante;    see  Hanson  v.  Craig,  ante. 

§  155.  Character  of  Lode  Discovery.  The  dis- 
covery must  be  upon  unappropriated  territory.1  It 
must  be  rock  in  place,2  not  necessarily  in  fissure,3  nor 
with  well  defined  walls  4  but  must  include  the  top  or 
apex.5  It  must  occupy  defined  space  and  be  capable 
of  identification.6  It  may  be  wide  or  narrow,7  be  a 
seam  or  stringer,8  slightly  interrupted,  partially 
closed,9  pinched  out  in  places  or  expand  or  swell  out 
and  as  suddenly  contract,  forming  "kidneys."  10 

It  must  bear  mineral,11  which  may  be  rich  or  poor.12 
While  uniformity  is  not  required  13  the  mineral  must 
not  be  fragmentary,14  although  it  may  be  unevenly 
distributed.15  It  must  not  consist  of  pieces  or  bunches 
of  quartz,  not  in  place,16  nor  of  float  rock,17  nor  of 
boulders  detached  from  the  earth's  crust.18 

1.  Brown  v.   Gurney,   201   U.   S.   184;  Little  Pittsburg  Co.   v. 

Amie  Co.,  17  Fed.  57;  Mont.  Cent.  Co.  v.  Migeon,  68  Fed. 
811;  Porter  v.  Tonopah  Co.,  133  Fed.  756;  Winter  Lode, 
22  L.  D.  362;  Upton  v.  Larkin,  5  Mont.  600;  Baker  v. 
Butte  City,  28  Mont.  222;  Lockhart  v.  Farrell,  31  Utah 
155. 

Part  or.  all  the  location  monuments  may  be  upon 
property  adversely  held,  Del  Monte  Co.  v.  Last  Chance 
Co.,  171  U.  S.  55,  but  the  discovery  must  be  within 
the  area  not  included  in  such  territory.  Gwillim  v. 
Donnellan,  115  U.  S.  45;  Jupiter  v.  Bodie  Con.  Co.,  11 
Fed.  666;  Bunker  Hill  Co.  v.  Shoshone  Co.,  33  L.  D. 
142;  Sullivan  v.  Sharp,  33  Colo.  346;  O'Donnell  v.  Glenn, 
8  Mont.  248;  Watson  v.-  Mayberry,  15  Utah  265.  That 
a  part  of  a  shaft  is  in  ground  belonging  to  an  adjacent 
patented  claim  is  immaterial.  Nichols  v.  Williams,  38 
Mont.  552. 

2.  Book  v.  Justice  Co.,  58  Fed.  106;  Meydenbauer  v.  Stevens, 

78  Fed.  787;  Fox  v.  Myers,  29  Nev.  169;  Hayes  v. 
Lavagnino,  17  Utah  185. 

3.  Mt.    Diablo    Co.    v.    Callison,    17    Fed.    Gas.    9886.      As    to 

horizontal  vein,  irregular  in  form,  not  in  fissure,  and 
incapable  of  being  traced  by  its  outcrop,  see  Breece 
Co.,  3  L.  D.  11. 


§  156]  DEVELOPMENT  OF  DISCOVERY.  201 

4.  Burke  v.  McDonald,  2  Ida.    (Hasb.)    679;  see  O'Donnell  v. 

Glenn,  ante. 

5.  Larkin  v.   Upton,    144   U.    S.    19;   Bunker   Hill   Co.    v.   Sho- 

shone  Co.,  ante;  see  Iron  Co.  v.  Murphy,  3  Fed.  368; 
Van  Zandt  v.  Argentine  Co.,  8  Fed.  725. 

6.  Foote  v.  National  Co.,  2  Mont.  402;  Fox  v.  Myers,  ante. 

7.  N.   Noonday  Co.   v.   Orient  Co.,    1   Fed.    522;   Meydenbauer 

v.  Stevens,  ante. 

8.  McShane  v.  Kenkle,   18  Mont.   208;   see  N.  Noonday  Co.  v. 

Orient  Co.,  ante;  Jupiter  Co.  v.  Bodie  Con.  Co.,  ante; 
Book  v.  Justice  Co.,  ante;  Shoshone  Co.  v.  Rutter,  87 
Fed.  801. 

9.  Jupiter  Co.  v.  Bodie  Con.  Co.,  ante. 

10.  Meydenbauer  v.  Stevens,  ante. 

11.  Book  v.  Justice  Co.,  ante;  Meydenbauer  v.  Stevens,  ante; 

Fox  v.  Myers,  ante;  Hayes  v.  L.avagnino,   ante. 

12.  Book  v.  Justice  Co.,  ante;  Meydenbauer  v.  Stevens,  ante; 

see  Ledoux  v.  Forester,  94  Fed.  600;  So.  Cross  Co.  v. 
Europa  Co.,  15  Nev.  383. 

13.  Meydenbauer  v.  Stevens,  ante. 

14.  Terrible   Co.  v.   Argentine  Co.,    89   Fed.   583;   see  Jones  v. 

Prospect  Co.,  21  Nev.  339. 

15..  Jupiter  Co.  v.  Bodie  Con.  Co.,  ante;  Meydenbauer  v. 
Stevens,  ante;  Murray  v.  White,  (Mont.)  113  Pac.  754. 

16.  Jupiter  Co.  v.  Bodie  Con.  Co.,  ante;  Waterloo  Co.  v.  Doe, 

56  Fed.  685. 

17.  Book  v.  Justice  Co.,  ante. 

18.  Meydenbauer  v.  Stevens,  ante;  see  Ambergris  Co.  v.  Day, 

12  Ida.  108. 

§  156.  Development  of  Discovery.  The  mining 
act  does  not  require  any  particular  manner  of  work, 
such  as  a  shaft  or  its  equivalent,1  to  determine  dis- 
covery. 

2.  LOCAL   PROVISIONS.    Local   statutes   or  district 
rules  usually  provide  for  the  character,  extent  and  the 
time  within  which  such  work  shall  be  performed. 

3.  ESSENTIAL  ACT  OF  LOCATION.    When  such  work 
is  required  it  is  an  essential  act  of  location.2    The  claim 
is  protected  from  adverse  location  during  the  period 
prescribed  for  such  preliminary  work.3 

4.  DISCOVERY  SHAFT.     The  discovery  shaft,  or  its 
equivalent,  must  be  sunk  or  made  upon  otherwise  un- 
appropriated ground  within  the  location.4     It  should 
disclose  mineral  therein,  but  discovery  may  be  shown 
elsewhere  within  the  location.5 

1.  See  Butte  City  Co.  v.  Baker,  196  U.  S.  119;  Gray  v.  Truby, 
6  Colo.  278;  Electro  Mag.  Co.  v.  VanAuken,  9  Colo.  204; 
Butte  City  Co.  v.  Baker,  196  U.  S.  119. 


202  DISCOVERY.  [Ch.  24 

2.  Northmore  v.   Simmons,   97   Fed.   386;   Eaton   v.   Norris,   131 

Cal.  561;  Becker  v.  Pugh,  9  Colo.  589;  Lockhart  v. 
Wills,  9  N.  M.  344. 

The  mere  performance  of  the  statutory  acts  of  loca- 
tion, as  the  marking  of  the  boundaries  of  the  claim 
and  the  sinking  of  a  shaft  to  a  required  depth  without 
discovery  of  mineral  will  not  validate  the  claim. 
McLaughlin  v.  Thompson,  2  Colo.  A.  135. 

3.  Erhardt  v.  Boaro,  113  U.  S.  527. 

4.  Zollars  v.   Evans,   5  Fed.   172;   Little  Pittsburg  Co.  v.  Amie 

Co.,  17  Fed.  57;  Treasury  Co.  v.  Boss,  32  Colo.  27; 
Butte  City  Co.  v.  Baker,  ante;  see  Tonopah  Co.  v. 
Tonopah  Co.,  125  Fed.  408;  Mitchell  v.  Broso,  27  L.  D. 
40;  Nichols  v.  Williams,  38  Mont.  552;  see  §  155,  ante. 

5.  Cheesman   v.   Shreve,    40   Fed.   787:    Terrible   Co.   v.    Argen- 

tine Co.,  89  Fed.   583;  McMillen  v.  Ferrum  Co.,  32  Colo. 
,38;  Gibson  v.  Hjul,   (Nev.)   108  Pac.  759. 

§  157.  Proof  of  Discovery.  The  question  of  dis- 
covery is  one  of  fact.1  It  may  be  raised  between  min- 
eral claimants,2  but  not  by  a  co-owner  3  nor  by  a 
grantor  of  the  property.4  It  may  be  raised  by  one 
claiming  the  land  to  be  more  valuable  for  agricultural 
than  for  mining  purposes.5 

2.  RULE  BETWEEN  RIVAL  CLAIMANTS.    When  there 
is  a  controversy  between  two  mineral  claimants,  the 
rule  respecting  the  sufficiency  of  discovery  of  mineral 
is  more  liberal  than  when  it  is  between  a  mineral 
claimant  and  one  seeking  to  make  an  agricultural  entry 
under  the  land  laws.6 

3.  REASON  FOR  RULE.    The  reason  for  the  above  dis- 
tinction is  that  when  land  is  sought  to  be  taken  out  of 
the  category  of  agricultural  lands  the  evidence  of  its 
mineral  character  should  be  reasonably  clear,  while  in 
a  controversy  between  rival  claimants  to  mineral  land, 
the  question  is  simply  which  is  entitled  to  priority ;  but 
even  then  the  existence  of  mineral  should  be  shown  7 
without,  however,  the  weighing  of  scales  to  determine 
the  value  of  the  mineral  found.8 

4.  TEST.     When  the  contest  is  between  a  mineral 
claimant  and  one  claiming  under  the  general  land  laws 
or  a  railroad  company  claiming  under  its  land  grant  9 
the  test  is,  not  the  mere  existence  of  a  mineral  deposit, 


§  157]  PROOF   OP   DISCOVERY.  203 

or  the  prospect  of  its  existence,  but,  whether,  as  a 
present  fact,  it  will  pay  to  mine  by  the  ordinary 
methods  of  mining.10 

5.  CONTESTS  BETWEEN  MINERAL  CLAIMANTS.     The 
courts  are  not  in  accord  whether  it  is  sufficient  if  the 
discovery  be  such  as  to  justify  an  ordinarily  prudent 
person,  not  necessarily  a  miner,  in  spending  his  time, 
labor  and  money  in  its  development 1:L  or  to  be  such 
as  to  cause  him  to  be  willing  to  make  such  expendi- 
tures.12 

6.  MlNERALOGICAL  AND  GEOLOGICAL  CONDITIONS.      It 

has  been  held  that  the  mineralogical  and  geological 
conditions  that  may  exist  in  the  ground  and  not 
whether  a  practical  miner  would  feel  justified  in  its 
exploitation,  should  control.13 

7.  SUPPLEMENTARY  EVIDENCE.    A  locator  may  sup- 
plement evidence  of  discovery  by  showing  the  situa- 
tion, character,  value  and  mineralogical  conditions  of 
adjacent  claims  and  proving,  by  the  opinions  of  ex- 
perienced miners,  based  upon  the  facts,  that  the  dis- 
covery was  sufficient  to  justify  the  locator  in  develop- 
ing the  claim.14 

8.  TESTIMONY.    It  may  be  shown  that  the  outcrop- 
pings  were  mineralized,15  or  probably  carried  mineral 
value.16    That  a  vein  or  lode  was  found  or  that  indi- 
cations existed  which  other  miners  followed  on  other 
ground  in  the  same  district;  and  on  contiguous  ground, 
in  attempting  to  find  mineral,  and  which,  if  followed, 
would  lead  to  ore.17 

9.  DISCOVERY  POINT.    Discovery  may  be  shown  by 
proof  of  mineral  at  some  point  other  than  the  discovery 
point.18 

10.  EXPERT  TESTIMONY.    Discovery  may  be  shown 
by  opinion  evidence  19  or  by  the  testimony  of  an  as- 
sayer.20 

11.  CONCLUSIVE  TESTIMONY.     The  patent  may  be 
conclusive  evidence  of  discovery.21 


204  DISCOVERY.  [Ch.  24 

12.     NEGATIVE  TESTIMONY.    Negative  testimony  may 
disprove  the  claim  of  discovery.22 

1.  Book  v.  Justice  Co.,  58  Fed.  106;  Meydenbauer  v.  Stevens, 

78  Fed.  787;   Charlton  v.  Kelly,   2  Alaska  532. 

2.  Waterloo  Co.  v.  Doe,  56  Fed.  685;  see  Book  v.  Justice  Co., 

ante;  Bevis  v.  Markland,  130  Fed.  226. 

3.  McCarthy  v.  Speed,  11  S.  Dak.  362. 

4.  Blake  v.  Thorne,  2  Ariz.  347. 

5.  Steele  v.  Tanana  Co.,  148  Fed.  678;  Bay  v.  Oklahoma  Co., 

13  Okla.  425;  see  Standard  Co.  v.  Habishaw,  132  Cal. 
115. 

6.  Chrisman  v.  Miller,  197  U.  S.  313;    Lange  v.  Robinson,  148 

Fed.  803;    Steele  v.  Tanana  Co.,  ante. 

7.  Id. 

8.  Bonner  v.  Meikle,  82  Fed.  697. 

9.  Steele  v.  Tanana  Co.,  ante. 

10.  Davis  v.  Weibbold,   139  U.  S.  507;  U.   S.  v.  Reed,   28  U.  S. 

482;  Cutting  v.  Reininhausen,  7  L.  D.  265;  Harnish  v. 
Wallace,  13  L.  D.  108;  Royal  K  Placer,  13  L.  D.  86;  Fer- 
rell  v.  Hoge,  27  L.  D.  129;  Brophy  v.  O'Hare,  34  L.  D. 
596;  Hunt  v.  S'teese,  75  Cal.  629.  The  burden  of  proof 
is  upon  the  mineral  claimant.  Dughi  v.  Harkins,  2 
L.  D.  721;  Aspen  Co.  v.  Williams,  23  L.  D.  34. 

11.  Chrisman  v.  Miller,   ante;   Cascaden  v.   Bartolis,   146  Fed. 

739;  Burke  v.  McDonald,  2  Ida.  (Hasb.)  296;  Hayes  v. 
Lavagnino,  17  Utah  185. 

12.  Shoshone    Co.    v.    Rutter,    87    Fed.    801;    Tuolumne    Co.    v. 

Maier,  134   Cal.   583. 

13.  McShane  v.  Kenkle,  18  Mont.  208. 

14.  While  mere  possibility  that  ground   claimed  as  valuable 

for  mineral,  or  that  there  are  mere  indication^  of  the 
existence  of  mineral  in  the  ground  is  not  enough  to 
justify  a  prudent  person  in  expending  money  and 
work  in  exploration  of  it,  yet  where  the  evidence  shows 
the  actual  existence  of  mineral  in  the  claim,  and 
such  evidence  is  of  sufficient  weight  to  submit  to 
the  jury  upon  the  issue  of  discovery,  the  locator  has 
a  right  to  strengthen  his  proof  upon  any  of  the  ele- 
ments which  enter  into  what  is  comprehended  by 
discovery.  In  doing  so,  he  may  supplement  the  show- 
ing that  mineral  actually  did  exist  by  introducing 
evidence  of  the  fact  that  as  a  ground  of  .-justification 
for  the  expenditure  of  time  and  money,  the  adjacent 
ground  in  the  immediate  vicinity  is  rich  in  the  same 
mineral,  or  that  adjacent  claims  were  developed  into 
Daying  mines  after  development  upon  similar  show- 
ings of  mineral,  or  that  geological  conditions  are  so 
similar  to  that  from  the  character  of  the  mineral  dis- 
covered, it  is  reasonable  to  expect  to  find  mineral  in 
valuable  quantities  in  the  exploitation  of  the  ground 
staked.  Cascaden  v.  Bartolis.  162  Fed.  267;  see- Am- 
bergris Co.  v.  Day.  12  "Ha.  108. 

15.  Columbia  Co.   v.   Duchess   Co.,    13   Wyo.    244. 

16.  Fox  v.  Myers,   29  Nev.   169. 

17.  Chpesman    v.    Shreve,    40    Fed.    787:    but    see    Iron    Co.    v. 

Mike  &  Stprr  Co..  143  U.  S.  394;  Chrisman  v.  Miller, 
ante;  Nev.  Sierra  Oil  Co.  v.  Home  Oil  Co.,  98  Fed.  671; 
and  see  Steele  v.  Tanana  Co.,  ante;  Lange  v.  Robinson, 
ante. 


§158]  LOSS  OF  DISCOVERY.  205 

18.  Calhoun  Co.  v.  Ajax  Co.,  182  U.  S.  499;  O'Donnell  v.  Glenn, 

8  Mont.  248;  Harrington  v.  Chambers,  3  Utah  94;  Hayes 
v.  Lavagnino,  ante;  see  McMillen  v.  Ferrum,  32  Colo.  38. 

19.  Davidson  v.  Bordeaux  15  Mont.  245. 

20.  So.  Cross  Co.  v.  Europa  Co.  15  Nev.  384;  see  Davidson  v. 

Bordeaux  ante. 

21.  Calhoun   Co.   v.   Ajax   Co.,    ante;    see   Creede   Co.   v.   Uinta 

Co.,  196  U.  S.  337;  see  §68-12,  ante. 

22.  Ambergris  Co.  v.  Day,  ante. 

§  158.  Loss  of  Discovery.  All  rights  in  a  valid 
location  will  be  lost  if  the  place  of  discovery  be  pat- 
ented to  another,1  unless  a  re-conveyance  has  been 
agreed  upon,2  or  a  new  discovery  is  made  elsewhere  in 
the  claim.3 

2.  SALE    BEFORE    DISCOVERY.     A  sale  by  a    joint 
locator  to  the  other  locators,  after  marking  the  claim 
and  before  discovery,4  or  a  transfer  of  part  of  a  claim 
after  discovery  and  before  fully  marking  the  location 
carries  no  loss  in  the  claim  to  the  purchasers.5 

3.  SALE  AFTER  DISCOVERY.    A. sale  of  that  portion 
of  an  unpatented  location  which  contains  the  dis- 
covery does  not  invalidate  the  location.6 

1.  Gwillim  v.   Donnellan,   115  U.  S.   56.     See  Lone  Dane  Lode, 

10  L.  D.  53.  But  the  loss  of  the  titular  discovery  is  not 
necessarily  loss  of  the  claim.  Bingham  Co.  v.  Ute  Co., 
181  Fed.  748;  Miller  v.  Girard,  3  Colo.  A.  278. 

2.  Duxie  Lode.   27  L.  D.  88. 

3.  Perigo    v.    Erwin,    85    Fed.    904;    Tonopah    Co.    v.    Tonopah 

Co..  125  Fed.  408;  Bingham  Co.  v.  Ute  Co.,  ante;  Miller 
v.  Girard,  ante;  Girard  v.  Carson,  22  Colo.  345;  Treas- 
ury Co.  v.  Boss,  32  Colo.  27:  Silver  City  Co.  v.  Lowry,  19 
Utah  334;  see  Richards  v.  Wolfing,  98  Cal.  195. 

4.  Miller  v.  Chrisman.   140  Cal.  440;  Merced  Co.  v.  Patterson, 

153  Cal.  624:  Whiting  v."  Straup,  17  Wyo.  1:  but  see 
H.  H.  Yard,  38  L.  D.  59;  Bakersfield  Fuel  «•  Oil  Co..  39 
L.  D.  460:  see  §  120-16,  ante;  see  Bay  v.  Oklahoma  Co., 
13  Okl.  425. 

5.  Doe  v.  Waterloo  Co.,  70  Fed.  455. 

6.  Little   Pittsburg   Co.   v.    Amie   Co.,    17   Fed.    57.      See   §  67-4, 

also  Zeckendorf  v.  Hutchinson,  1  N.  M.   476. 


206  LOCATORS.  [Ch.  25 

CHAPTER  XXV. 

LOCATORS. 

§  162.  Rights    of    locators — basis    of    possession — forfeiture — 

abandonment. 
§  163.  Citizens  and  aliens — location  by  alien — rights  of  alien 

— patent  proceedings — presumption. 
§  164.  Agents — no  divestiture  of  title. 
§  165.  Who  cannot  be  locators. 

§162.  Rights  of  Locators.  The  character  of  the 
right  which  is  granted  by  the  United  States  to  a  locator 
is  that  no  written  instrument  is  necessary  to  create  it.1 

2.  BASIS  OF  POSSESSION.     Valid  location  and  an- 
nual expenditure  give  and  continue  the  right  of  pos- 
session.2 

3.  FORFEITURE.     The  right  to  the  location  may  be 
lost  by  a  failure  to  do  the  necessary  amount  of  work 
thereon  or  to  contribute  due  proportion  thereof.3 

4.  ABANDONMENT.    The  right  of  possession  may  be 
renounced  and  the  claim  or  an  interest  therein  be  aban- 
doned.4 

1.  Black  v.  Elkhorn  Co.,  163  U.  S.  445;    Daggett  v.  Yreka  Co., 

149  Cal.  357. 

The  right  to  a  mining  claim  rests  (1)  on  the  laws 
of  the  United  States,  (2)  on  the  laws  of  the  State, 
and  (3)  on  the  local  rules,  regulations  of  the  mining 
district  wherein  the  same  is  situated.  Johnson  v. 
McLaughlin,  1  Ariz.  493.  See  U.  S.  v.  Rizzinelli,  182 
Fed.  675. 

By  the  mining  laws  of  the  United  States  three 
classes  of  title  are  created,  (1)  title  in  fee  simple,  (2) 
title  by  possession,  (3)  the  complete  equitable  title. 
The  first  vests  in  the  grantee  of  the  government  an 
indefeasible  title  in  the  nature  of  an  easement  only. 
The  first  being  an  absolute  grant  by  purchase  and 
patent  without  condition,  is  not  defeasible,  while  the 
second  being  a  mere  right  of  possession  and  enjoy- 
ment of  profits  without  purchase  and  upon  conditions, 
may  be  defeated  at  any  time  by  the  failure  o-f  the 
party  in  possession  to  comply  with  the  conditions. 
The  equitable  title  accrues  immediately  upon  pur- 
chase, for  the  entry  entitles  the  purchaser  to  a  patent. 
So.  End  Co.  v.  Tinney,  22  Nev.  221. 

2.  Black  v.   Elkhorn  Co.,  ante;   Street  v.  Delta  Co.,   42  Mont. 

371. 

3.  Black  v.  Elkhorn  Co.,  ante;  see  §  73,  ante. 

4.  Id.;  see  §72,  ante. 


§163]  CITIZENS   AND   ALIENS.  207 

§  163.  Citizens  and  Aliens.  Mining  claims  within 
the  United  States  x  and  the  Philippine  Islands  2  may 
be  located  by  citizens  of  the  United  States  and  those 
who  have  declared  their  intention  to  become  such;3 
and  within  the  Philippine  Islands  by  citizens  thereof.4 
Native  born  citizens  of  the  Dominion  of  Canada  are 
accorded  certain  reciprocal  rights  within  the  District 
of  Alaska.5 

2.  LOCATION  BY  ALIEN.    A  location  by  an  alien  of  a 
mining  claim  within  the  United  States  or  the  Philip- 
pine Islands  is  not  void  but  is  voidable.6 

3.  EIGHTS  OF  ALIEN.    A  location  made  by  an  alien 
is  not  subject  to  attack  except  by  the  government  in 
direct  proceedings  termed  "inquest  of  office  found"  7 
or  by  the  land  department  in  the  course  of  patent  pro- 
ceedings 8  or  by  a  party  to  a  suit  or  action  brought  in 
opposition  to  a  claim  for  patent.9     In  no  other  way 
may  persons  legally  raise  the  question  of  citizenship 
and  the  courts  may  be  invoked  to  restrain  any  unlaw- 
ful interferences.10 

Naturalization  before  adverse  rights  attach  or  a 
judgment  is  rendered  acts  retroactively  in  patent  pro- 
ceedings, upon  the  rights  of  an  alien.11 

4.  PATENT  PROCEEDINGS.    In  patent  proceedings  it 
is  the  citizenship  of  the  applicant  for  patent  or  of  the 
adverse  claimant,  not  necessarily  that  of  the  locator 
which  is  involved.12 

The  patent  is  conclusive  evidence  of  citizenship.13 

5.  PRESUMPTION.      Sometimes    citizenship    is   pre- 
sumed from  location.14 

rrf&ti  A 


1.  Rev.  Stats.,  §  2319. 

2.  32  Stats.  697;  33  Stats.  692. 

3.  Rev.  Stats.,  §  2319. 

A  corporation  may  locate  a  mining"  claim.  McKin- 
ley  v.  Wheeler,  130  U.  S.  630;  Book  v.  Justice  Co.,  58 
Fed.  106;  Gird  v.  Cal.  Oil  Co.,  60  Fed.  531;  Thomas  v. 
Chisholm,  13  Colo.  105.  That  it  may  obtain  a  patent, 
see  Rev.  Stats.,  §2332;  Doe  v.  Waterloo  Co.,  70  Fed. 
455.  A  patent  for  a  mining  claim  to  a  corporation 
proves  that  the  patentee  was  a  corporation.  Gal- 
braith  v.  Shasta  Co.,  143  Cal.  94. 


208  LOCATORS.  tch.  25 

4.  32  Stats.  697;  33  Stats.  692. 

5.  30  Stats.  415;  Instructions,  32  L.  D.  424.     See  §3,  ante. 

6.  Manuel   v.   Wulff,    152   U.   S.    505;   McKinley   Creek   Co.   v. 

Alaska  United  Co.,  183  U.  S.  563;  Lone  Jack  Co.  v. 
Megglnson,  82  Fed.  89;  Thomases  v.  Melsing,  109  Fed. 
710;  Shea  v.  Nilima,  133  Fed.  209;  McEvoy  v.  Meggin- 
son.  29  L.  D.  164;  Ferguson  v.  Neville,  61  Cal.  356; 
Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569;  Stewart  v. 
G.  &  C.  Co.,  29  Utah,  443;  Davis  v.  Dennis,  43  Wash.  54. 
As  to  rights  of  aliens  in  the  territories,  see  24  Stats. 
476;  29  Stats.  618.  Alien  heirs  may  inherit.  Billings 
v.  Aspen  Co.,  51  Fed.  338;  Lohmann  v.  Helmer,  104 
Fed.  178;  Ferguson  v.  Neville,  ante. 

7.  Manuel    v.    Wulff,    ante;    McKinley    Creek    Co.    v.    Alaska 

United  Co.,  ante;  Allyn  v.  Stehultz,  5  Ariz.  152;  Harris 
v.  Kellogg,  117  Cal.  484;  Keeler  v.  Trueman,  15  Colo. 
143;  Wilson  v.  Triumph  Co.,  19  Utah  66. 

8.  Wilson  v.  Triumph  Co..  ante     See  Regulations.   39  L.  D. 

320. 

9.  O'Reilly  v.  Campbell,  116  U.  S.  418;  Matlock  v.  Stone,  77 

Ark.  195;  Allyn  v.  Schultz,  ante;  Harris  v.  Kellogg, 
ante. 

An  "adverse  suit"  is  equivalent  to  "inquest  of  office" 
as  the  government  is  interested  in  the  outcome  of  the 
proceeding  or  suit  and  either  party  to  an  adverse  suit 
may  question  the  citizenship  of  the  other.  An  objec- 
tion on  the  ground  of  alienage  in  a  judicial  proceed- 
ing, if  sustained,  will  only  defeat  the  claim  of  the 
alien  and  will  not  in  any  sense  sustain  the  title  of 
the  objector.  Sherlock  v.  Leighton,  9  Wyo.  297;  see 
Holdt  v.  Hazard,  10  Cal.  A.  440;  Duncan  v.  Eagle  Rock 
Co.,  ante. 

10.  McKinley   Creek   Co.   v.   Alaska  United   Co.,    ante;    Thor- 

nases  v.  Melsing,  ante;  Davis  v.  Dennis,  ante;  Duncan 
v.  Eagle  Rock  Co,  ante;  see  Racoullat  v.  Sansevain,  32 
Cal.  376. 

11.  O'Reilly  v.  Campbell,  ante;  Lone  Jack  Co.  v.  Megginson, 

ante;  Adams, v.  Crawford,   116  Cal.  495. 

12.  Cash  Lode,  1  C.'  L.  O.  98;    but  see  Duncan  v.  Eagle  Rock 

Co.,  ante. 

13.  Steel  v.   St.  Louis  Co.,   106  U.   S.   447;   Dahl  v.  Raunheim, 

132  U.  S.  260;  Justice  Co.  v.  Lee,  21  Colo.  260. 

14.  Jantzon   v.   Arizona  Co.,    3   Ariz.   6;   Garfield   Co.   v.   Ham- 

mer, 6  Mont.  53;  see  Strickley  v.  Hill,  22  Utah  257. 


§  164.  Agents.  The  right  to  or  in  a  location  will 
vest  in  the  principal  when  made  by  an  agent,  attorney 
in  fact,1  partner,2  or  employee  3  who  acts  with  4  or 
without  5  express  authority,  as  the  principal's  authori- 
zation is  presumed  6  although  he  may  have  no  previous 
knowledge  of  the  location;7  or  he  may  subsequently 
acquiesce  thereto.8 


§  165]  WHO  CANNOT  BE  LOCATORS.  209 

2.  No  DIVESTITURE  OP  TITLE.  Subsequent  destruc- 
tion of  a  location  notice  once  posted  will  not  divest  the 
title  of  the  principal.9 

1.  Book  v.  Justice  Co.,  58  Fed.   106;  Doe  v.  Waterloo  Co.,   70 

Fed.  455;  Ledoux  v.  Forester,  94  Fed.  600;  Walton  v. 
Wild  Goose  Co.,  123  Fed.  209;  McCullough  v.  Murphy, 
125  Fed.  147;  Morton  v.  Solambo  Co.,  26  Cal.  527;  Moore 
v.  Hamerstag,  109  Cal.  122;  Dunlap  v.  Pattison,  4  Ida. 
473;  Whiting  v.  Straup,  17  Wyo.  1. 

2.  Johnstone  v.  Robinson,  16  Fed.  903;  M'Mahon  v.  Meehan,  2 

Alaska,   278. 

3.  Fuller    v.    Harris,    29    Fed.    814;    Book    v.    Justice,    ante; 

Durant  v.  Corbin,  94  Fed.  382. 

4.  Doe  v.  Waterloo  Co.,  ante. 

5.  Rush   v.   French,    1   Ariz.    99;   Thompson   v.    Spray,    72    Cal. 

528;  Van  Valkenburg  v.  Huff,  1  Ney.  142. 

6.  Gore   v.   McBrayer,    18    Cal.    582;   Kramer  v.    Settle,    1    Ida. 

(Hasb.)  485;  Van  Valkenburg  v.  Huff,  ante;  see  Thomp- 
son v.  Spray,  ante. 

7.  Gore  v.  McBrayer,  ante;  Morton  v.  Solambo  Co.,  ante;  see 

also  Walton  v.  Wild  Goose  Co.,  ante. 

8.  Thompson  v.  Spray,  ante;  see  Rush  v.  French,  ante. 

9.  Rush  v.  French,  ante;  Morton  v.  Solambo  Co.,  ante. 

§  165.  Who  Cannot  be  Locators.  All  persons  em- 
ployed in  the  Department  of  the  Interior  as  officers 
of  the  General  Land  Office,  clerks,  employees,  and 
as  Deputy  United  States  Mineral  Surveyors  cannot 
legally  locate,  hold,  nor  patent  a  mining  claim.1 

1.  Rev.  Stats.,  §452;  Prosser  v.  Finn,  208  U.  S.  67;  Waskey  v. 
Hammer,  170  Fed.  31  (now  pending  in  U.  S.  Supreme 
Court  on  certiorari);  Frank  A.  Maxwell,  29  L.  D.  76; 
Alfred  Baltzell,  29  L.  D.  333;  Robt.  J.  Watson,  33  L.  D. 
435;  Seymour  K.  Bradford,  36  L.  D.  61;  Philip  Cont- 
zen,  38  L.  D.  346;  Ricard  L.  Powell,  39  L.  D.  177;  Lav- 
agnino  v.  Uhlig,  26  Utah  1;  s.  c.  198  U.  S.  443;  Lock- 
hart  v.  Farrell,  31  Utah  155;  see  Hand  v.  Cook,  29  Nev. 
518;  but  see  Gibson  v.  Hjul  (Nev.),  108  Pac.  759. 


CHAPTER  XXVI. 

ORIGINAL  LOCATIONS. 

§  168.  In  general — possessory  title — priority  of  title — inde- 
pendent locations — invalid  locations — form  of  lode 
location — form  of  placer  location — must  conform  to 
law — time  of  location — qualification  of  locator. 

§  169.  Equivalent  of  location — right  to  patent. 

§  170.  Fraudulent  placer  location — innocent  participants. 

§  171.  Voidable  locations. 


210  ORIGINAL   LOCATIONS.  [Ch.  26 

§172.  Void  locations  —  absence  of  discovery  —  boundaries — 
illustrations — timber — trespass. 

§  173.  Size  of  lode  claims — measurement — presumption — ex- 
cessive size — segregation — reasonable  time  to  cast 
off. 

§  174.  Size  of  pl-acer  claims — excessive  size. 

§  175.  Size  of  tunnel  sites — excessive  location. 

§  176.   Size  of  mill-sites — form. 

§177.  Acts  of  location — acts  incumbent  on  locator — order  of 
performance — original  discoverer — re-locator  not  dis- 
coverer— limitation — boundaries — time  and  manner  of 
marking  boundaries — essential  acts  of  location — 
possible  insufficiency  of  acts — question  of  fact — what 
controls — monuments  as  boundaries — position  of  lode 
claim  monuments  —  consent  of  owner  —  limitation  — 
position  of  placer  claim  monuments  —  possible  dis- 
crepancy— changing  position  of  marks — obliteration 
of  marks — no  presumption — by  whom  the  marks  may 
be  placed — end  lines — effect  of  establishing  end  lines 
— question  of  fact — constructive  end  lines — side  lines 
— irregularity  of  side  lines — agreed  lines. 

§  168.  In  General.  At  the  date  of  the  location 
the  ground  appropriated  must  be  a  part  of  the  public 
domain  *  available  and  valuable  for  mining  purposes.2 

2.  POSSESSORY  TITLE.    Possessory  title  does  not  vest 
until  both  discovery  and  a  proper  marking  of  the 
claim.3     The  marking  may  be  prior  to  discovery  4  or 
within  a  reasonable  time  thereafter  5  in  the  absence  of 
an  intervening  right.6 

3.  PRIORITY  OF  TITLE.     Priority  of  title  gives  the 
better  right  as  between  adverse  mineral  claimants,7 
but  if  the  value  of  the  land  as  mineral  land  is  ques- 
tioned the  character  of  the  land  and  not  priority  of  the 
claim  of  title  thereto  controls.8 

4.  INDEPENDENT  LOCATIONS.    Any  number  of  inde- 
pendent locations  contiguous  or  otherwise,9  except  of 
saline  lands,10  and  possibly  mill-sites  II  may  be  made 
by  the  same  party. 

5.  INVALID  LOCATIONS.     An  invalid  or  incomplete 
location  is  subject  to  adverse  location  or  entry.12    The 
validity  of  either  of  such  proceedings  is  not  affected 
by  any  knowledge  of  the  previous  attempt  at  appro- 
priation.13 


§  168]  ORIGINAL  LOCATIONS.  211 

6.  FORM  OF  LODE  LOCATION.     Theoretically  a  lode 
location  should  be  in  the  form  of  a  parallelogram.14    A 
departure    therefrom    merely    affects    the    claimant's 
right  to  follow  the  dip.15 

7.  FORM  OF  PLACER  LOCATION.    If  upon  surveyed 
lands  a  placer  location  should  conform  as  nearly  as  is 
reasonably  practicable  to  the  rectangular  subdivisions 
of  the  public  surveys.16    But  whether  upon  surveyed 
or  unsurveyed  lands  the  location  should  be  rectangular 
in  form,  compact,  and  with  north  and  south  and  east 
and  west  boundary  lines.    It  should  not  encroach  upon 
appropriated  territory.17 

8.  MUST  CONFORM  TO  LAW.    No  placer  location  will 
be  passed  to  patent  unless  the  land  department  be  satis- 
fied that  it  sufficiently  conforms  to  the  law.18 

9.  TIME  OF  LOCATION.    A  location  may  legally  be 
made  upon  a  Sunday  19  or  other  legal  holiday. 

10.  QUALIFICATION  OF  LOCATOR.    A  location  may  be 
made  without  regard  to  age,20  sex,21  residence  22  or 
citizenship  of  the  locator.23 

1.  Brown    v.    Gurney,    201    U.    S.    184;     Street    v.    Delta    Co., 

42  Mont.  371.  There  are  three  kinds  of  mineral  loca- 
tions, viz:  "lode  locations,"  "tunnel  locations,"  and 
"placer  locations."  A  proper  location  in  either  class 
fully  maintained  by  use,  enjoyment  or  patent  is  not 
subject  to  adverse  location  by  a  claimant  of  the  same 
class  or  any  other  class,  because  it  has  become  private 
property  and  no  longer  open  to  a  new  appropriation. 
Calhoun  Co.  v.  Ajax  Co.,  27  Colo.  1. 

2.  U.   S.  v.   C.   P.  R.   Co.,   93   Fed.   871;   Steele  v.   Tanana  Co., 

148  Fed.  678;  Alford  v.  Barnum,  45  Cal.  482;  Mutchmor 
v.  McCarty,  149  Cal.  603;  Merrill  v.  Dixon,  15  Nev.  401. 

3.  Ledoux  v.   Forester,   94   Fed.   600;    Charlton   v.  Kelly,   156 

Fed.  433;  Eaton  v.  Norris,  131  Cal.  561;  Miller  v.  Chris- 
man,  140  Cal.  440;  Wright  v.  Lyons,  45  Or.  167. 

4.  Sharkey  v.  Candiani,  48  Or.  112. 

5.  Brockbank    v.    Albion    Co.,    29    Utah     367;     Union     Co.    v. 

Leitch,  24  Wash.  585. 

6.  Brewster  v.  Shoemaker,  28  Colo.  176. 

7.  Van  Zandt  v.  Argentine  Co.,  8  Fed.  725. 

8.  Bay  v.  Oklahoma  Co.,  13  Okla.  425. 

9.  Last  Chance  Co.  v.  Bunker  Hill  Co.,  131  Fed.  579;  Tomera 

Placer  Claim,  33  L.  D.  560;  see  Prosser  v.  Parks,  18 
Cal.  47.  In  Oregon  the  right  is  limited  by  local  statute 
to  one  location  upon  a  lode  except  it  be  the  first 
thereon.  In  the  latter  case  an  additional  location  may 
be  made.  B.  &  C.  Codes,  §  3974. 


212  ORIGINAL   LOCATIONS.  [Ch.  26 

10.  31  Stats.  745. 

11.  Alaska  C.  Co.,  32  L.  D.  128;  see  J.  B.  Hoggin,  2  L.  D.  755. 

12.  Erwin    v.    Perego,    93    Fed.    609;    see    J.    B.    Hoggin,    ante; 

Funk  v.  Sterrett,  59  Cal.  613;  Adams  v.  Crawford,  116 
Cal.  495;  Miller  v.  Chrisman,  ante;  Lockhart  v.  Wills, 
9  N.  M.  344. 

13.  Brown  v.  Or.  King  Co.,  110  Fed.  728;  Galbraith  v.  Shasta 

Iron  Co.,   143  Cal.  94. 

14.  Rev.    Stats.,    §2320;    see    Carson    City   Co.   v.    N.    Star   Co., 

83  Fed.  579;  Last  Chance  Co.  v.  Bunker  Hill  Co.,  131 
Fed.  527.  That  the  form  of  the  location  is  not  abso- 
lutely essential  to  either  a  lode  or  a  placer  location, 
see  Walrath  v.  Champion  Co.,  171  U.  S.  293;  Breece  Co. 
3  L.  D.  11;  Miller  Placer  Claim,  30  L.  D.  225;  Doe  v. 
Sanger,  83  Cal.  203;  Mitchell  v.  Hutchinson,  142  Cal. 
404;  S.  C.  R.  Co.  v.  O'Donnell,  3  Cal.  A.  382.  As  to 
placer  claims  in  Alaska,  see  McKinley  Creek  Co.  v. 
-  Alaska  United  Co.,  183  U.  S.  563;  Loeser  v.  Gardiner, 
1  Alaska  641. 

15.  Iron  Co.  v.  Elgin  Co.,  118  U.  S.  196;  Walrath  v.  Champion 

Co.,  ante.  See  Del  Monte  v.  Last  Chance  Co.,  171  U.  S. 
55. 

16.  Rev.    Stats.,    §2329.      A   placer    location    in   the   form    of   a 

lode  location  has  been  upheld  in  California.  McCann 
v.  McMillan,  129  Cal.  350;  also  in  Alaska,  McKinley 
Creek  Co.  v.  Alaska  United  Co.,  ante. 

17.  Min.    Reg.,    par.    30;    Snow    Flake    Fraction,    37   L.    D.    250, 

appd.  in  Hanson  v.  Craig,  170  Fed.  62;  see  Mitchell  v. 
Hutchinson.  ante;  see  Stenfjeld  v.  Espe,  171  Fed.  825. 

18.  Min.  Reg.,  par.   30. 

19.  Dolly  Varden  Min.   Law  Dig.   98. 

20.  Thompson    v.    Spray,    72    Cal.    528;     Davis    v.    Dennis,    43 

Wash.   54. 

21.  Eureka  Office,  4  C.  L.  O.  179. 

22.  Book  v.   Justice  Co.,   58  Fed.   106;   see  Rush  v.  French,   1 

Ariz.    99. 

23.  Davis  v.  Dennis,  ante;    Holdt  v.  Hazard,  10  Cal.  A.  440. 

§  169.  Equivalent  to  Location.  In  the  absence  of 
an  adverse  claim  the  possession  and  working  of  a  min- 
ing claim  for  a  period  equal  to  the  time  prescribed  by 
the  local  statute  of  limitations  is  equivalent  to  a  valid 
location.1 

2.  RIGHT  TO  PATENT,  The  statutory  expenditure 
being  made  thereon  2  the  claimant  is  entitled  to  a  pat- 
ent from  the  government  therefor.3 

1.  420    Co.    v.    Bullion    Co..    9    Nev.    240;    Buffalo    Zinc    Co.    v. 

Crump,  70  Ark.  525;  Altoona  Co.  v.  Integral  Co.,  114 
Cal.  100;  Upton  v.  Sta.  Rita  Co.,  14  N.  M.  96;  see  Riscli 
v.  Wiseman,  36  Or.  484;  see  §  84,  ante. 

2.  See  Stewart  v.  Rees,  21  "L.  D.  446. 

3.  Cleary   v.    Skiffich,    28    Colo.    362;    McCowan    v.    Maclay,    16 

Mont.   234. 


§172]  VOID    LOCATIONS.  213 

§  170.  Fraudulent  Placer  Location.  Where  an 
association  of  persons  locates  a  placer  claim  in  the 
interest  of  a  single  individual I  or  of  a  corporation  2 
the  location  is  valid  only  to  the  extent  of  20  acres. 

2.  INNOCENT  PARTICIPANTS.  Locators  not  impli- 
cated in  such  fraud  may  select  and  hold  their  propor- 
tionate share  of  the  location,  that  is,  20  acres  each.3 

1.  Durant  v.   Corbin,   94   Fed.   382;   Cook  v.   Klonas,   164   Fed. 

529;  Mitchell  v.  Cline,  84  Cal.  409;  see  U.  S.  v.  Portland 
Co.,  173  Fed.  566;  Nome  &  Sinook  Co.  v.  'Snyder,  187 
Fed.  385;  see  §174,  post. 

2.  Gird  v.  Cal.  Oil  Co.,  60  Fed.  531;  see  also  U.  S.  v.  Trinidad 

Co.,   137  U.   S.  160. 

3.  Cook  v.   Klonas,   168   Fed.   700. 

§  171.  Voidable  Locations.  A  location  otherwise 
valid  but  made  by  an  alien  is  voidable  and  not  void.1 

1.  Manuel   v.    Wulff,    152    U.    S.    505;    McKinley    Creek   Co.    v. 
Alaska  United  Co.,  183  U.  S.  563;  see  §M63,  ante. 

§  172.  Void  Locations.  A  location  may  be  marked 
upon  the  ground  and  still  be  neither  valid  nor  sub- 
sisting.1 Each  locator  must  stand  on  his  own  location. 
He  can  take  only  what  it  will  give  him  under  the  law.2 

2.  ABSENCE  OF  DISCOVERY.    In  the  absence  of  dis- 
covery no  act  of  the  claimant  can  confer  validity  upon 
the  claim.3 

3.  BOUNDARIES.    Where  discovery  is  made,  but  the 
location  is  not  so  marked  that  its  boundaries  can  be 
readily  traced,  the  claimant  assumes  the  risk  of  inter- 
vening rights.4 

4.  ILLUSTRATIONS.     A  location  based  upon  a  dis- 
covery which  is  within  the  limits  of  a  prior  location,5 
when,  possibly,  of  excessive  size,6  upon  the  dip  of  a 
vein  or  lode,7  or  a  lode  location  of  a  placer  deposit,8  or 
vice  versa,  or  a  placer  location  intended  to  secure  a 
known  vein   therein,9   or  merely  to  secure   a   water 
right,10  or  a  mill-site  location    intended    merely    to 
secure  a  water  right 1:L  is  void. 

5.  TIMBER.     A  valuable  growth  of  timber  upon  a 
claim  may  properly  be  an  incentive  to  its  location.12 


214  ORIGINAL  LOCATIONS.  [Ch.  26 

6.  TRESPASS.  Trespass  initiates  no  right  in  land 
which  is  in  the  actual  possession  of  another.13  The 
performance  of  acts  necessary  to  constitute  a  location 
upon  land  held  by  another  is  only  a  trespass  and  can- 
not form  the  basis  for  the  acquisition  of  title  14  save 
when  by  acquiescence  or  neglect  the  right  to  object  to 
it  is  waived.15 

1.  Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55. 

2.  Lockhart  v.  Farrell,  31  Utah   155. 

3.  Wright  v.  Killian,  132  Cal.  251;  Lockhart  v.  Farrell,  ante. 

4.  O'Reilly    v.    Campbell,    116    U.    S.    418;    Del   Monte    Co.    v. 

Last  Chance  Co.,  ante. 

5.  Gwillim    v.    Donnellan,    115    U.    S.    45;    Tuolumne    Co.    v. 

Maier,  134  Cal.  583;  Sullivan  v.  Sharp,  33  Colo.  346; 
McPherson  v.  Julius,  17  S.  Dak.  98;  see  Tonopah  Co. 
v.  Tonopah  Co.,  123  Fed.  408;  Reiner  v.  Schroeder,  146 
Cal.  411. 

6.  See   Nicholls   v.    Lewis   &   Clark   Co.    (Ida.)    109   Pac.    846; 

Flynn  Group  Co.  v.  Murphy,  18  Ida.  266;  but  see  Jones 
v.  Wild  Goose  Co.,  177  Fed.  95. 

7.  Larkin  v.  Upton,   144  U.  S.  19;  Iron  Co.  v.  Murphy,   3  Fed. 

368;  Van  Zandt  v.  Argentine  Co.,  8  Fed.  725;  Bunker 
Hill  Co.  v.  Shoshone  Co.,  33  L.  D.  142. 

8.  Henderson  v.  Fulton,  35  L.  D.   652. 

9.  Grosfield  v.  Nigger  Hill  Co.,  14  L.  D.  685. 

10.  Wm.  A.  Cheesman,  2  L.  D.  774. 

11.  Chas.  Lennig,  5  L.  D.  190. 

12.  U.   S.   v.   Iron   Co.,    128  U.   S.   673;   see   E.   M.   Palmer,   38   L. 

D.    294. 

13.  Cowell  v.   Lammers,    21   Fed.    200;   Neuebaumer  v.   Wood- 

man, 89  Cal.  310;  see  §113,  ante,  and  §180,  post. 

14.  Weese   v.  Barker,   7   Colo.   178;   see   O'Reilly   v.   Campbell, 

ante;   see  note   13,   ante. 

15.  Snyder  v.  Colo,  Co.,  181  Fed.  62;  see  §180-6-7,  post. 

§  173.  Size  of  Lode  Claims.  A  lode  claim  should 
not  exceed  1500  feet  along  the  vein  or  lode,  nor  extend 
more  than  300  feet,  nor  be  limited  by  local  statute  or 
district  rule,  to  less  than  25  feet  on  each  side  of  the 
middle  of  the  vein  or  lode  at  the  surface.1 

2.  MEASUREMENT.     The  length  and  width  (that  is 
the  distance  between  the  side  lines)2  may  be  measured 
from  the  point  of  discovery.3    Neither  the  end  lines  4 
nor  the  side  lines  5  need,  necessarily,  be  equi-distant 
from  the  "discovery." 

3.  PRESUMPTION.     In  the  absence   of  a  contrary 
statement  in  the  location  notice,6  knowledge  of  the 


§  174]  SIZE  OP  PLACER  CLAIMS.  215 

locus  of  the  vein  or  lode,7  or  proof  to  the  contrary,  it 
will  be  presumed  that  the  point  of  discovery  was  in 
the  middle  of  the  vein  or  lode.8 

4.  EXCESSIVE  SIZE.     A  location  that  exceeds  the 
maximum  size  is  void  only  as  to  the  excess  9  unless 
fraudulent 10  or  misleading.11 

5.  SEGREGATION.    When  innocently  done  the  claim- 
ant may  select  the  ground  to  be  retained  and  draw  in 
his  lines  accordingly.12 

6.  KEASONABLE  TIME  TO  CAST  OFF.    This  should  be 
done  within  a  reasonable  time,  pending  which  an  ad- 
verse location  of  any  part  thereof  is  perhaps  a  nul- 
lity.13 

1.  Rev.    Stats.,    §2320;    see   King1  v.   Amy   Co.,    152   U.    S.    222; 

Con.  Wyo.  Co.  v.  Champion  Co.,  63  Fed.  540. 

2.  Flagstaff  Co.  v.  Tarbet,   98  U.   S.   463;  Davis  v. '.  Shepherd, 

31  Colo.  141. 

3.  Hope  Co.,  5  C.  L.  O.  116;  Johnson,  7  C.  L.  O.  35. 

4.  See  Zerres  v.  Vanina,   134  Fed.  610. 

5.  Taylor  v.  Parenteau,  23  Colo.  368. 

6.  Stemwinder  Co.  v.  Emma  Co.,  2  Ida.   (Hasb.)   456. 

7.  Farmington  Co.  v.  Rhymney  Co.,   20  Utah  363. 

8.  See  note  3,  ante;    see  Harper  v.  Hill,  (Cal.)  113  Pac.  162. 

9.  Howeth   v.   Sullenger,   113   Cal.   547;   McElligott  v.   Krogh, 

151  Cal.  126;  Burke  v.  McDonald,  2  Ida.  (Hasb.)  679; 
McPherson  v.  Julius,  17  S.  Dak.  98;  Hansen  v.  Fletcher, 
10  Utah  266. 

10.  Gohres   v.   Illinois   Co.,    40   Or.    516.      If  a  claim   is  so   ex- 

cessive in  size  as  to  preclude  presumption  of  innocent 
error,  fraud  will  be  presumed.  Flynn  Group  Co.  v. 
Murphy,  18  Ida.  266. 

11.  Ledoux  v.  Forester,  94  Fed.  600;  Hauswirth  v.  Butcher,  4 

Mont.    299. 

12.  Hansen   v.   Fletcher,   ante;   see  U.   S.   v.   Keitel,    211   U.   S. 

370;  M'Intosh  v.  Price,  121  Fed.  716;  Zimmerman  v. 
Funchion,  161  Fed.  859;  Nicholls  v.  Lewis  &  Clark  Co., 
18  Ida.  224. 

13.  Jones   v.   Wild  Goose   Co.,   177   Fed.   95;   see   Flynn  Group 

Co.  v.  Murphy,  ante. 

§  174.  Size  of  Placer  Claims.  The  maximum  size 
is  20  acres  for  an  individual  and  160  acres  for  an  asso- 
ciation of  not  less  than  8  persons,1  or,  correspondingly, 
if  the  association  is  composed  of  a  less  number.2 

2.  EXCESSIVE  SIZE.  Mere  excess  over  the  maximum 
amount  may  not  invalidate  the  location  3  unless  the  ex- 
cess be  great.4 


216  ORIGINAL  LOCATIONS.  [Ch.  26 

1.  Rev.  Stats.,  §§2330-2331;  Gird  v.  Cal.   Oil  Co.,   60  Fed!  531; 

Kirk  v.  Meldrum,   28  Colo.   453;  see  §170,  ante. 

2.  Kirk  v.  Meldrum,  ante. 

3.  Walton  v.  Wild  Goose  Co.,  123  Fed.  209;  Waskey  v.  Ham- 

mer, 170  Fed.  31;  see  M'Intosh  v.  Price,  121  Fed.  716; 
Zimmerman  v.  Funchion,  161  Fed.  859;  Waskey  v. 
Hammer,  ante;  Jones  v.  Wild  Goose  Co.,  177  Fed.  95. 

4.  Pratt  v.  United  Alaska  Co.,  1  Alaska  95;  see  §  173,  4-6,  ante. 

§  175.  Size  of  Tunnel-sites.  The  maximum  length 
of  a  tunnel  is  3000  feet  from  its  face,1  that  is,  the  point 
at  which  it  actually  enters  under  cover.2  It  is  not 
limited  to  any  particular  width.3 

2.  EXCESSIVE  LOCATION.  It  is  void  only  as  to  any 
excess  in  length.4 

1.  Glacier  Co.  v.  Willis,  127  U.  S.  471. 

2.  Min.  Reg.,  par.   16. 

3.  Rev.  Stats.,  §  2323. 

4.  Glacier  Co.  v.  Willis,   ante;  see  Jones  v.  Wild  Goose  Co., 

177  Fed.  95. 

§  176.  Size  of  Mill-sites.  A  mill-site  cannot  ex- 
ceed 5  acres  in  extent.1 

2.  FORM.  There  is  no  provision  in  the  law  as  to  the 
form  of  the  location. 

1.  Rev.  Stats.,  §  2337. 

§  177.  Acts  of  Location.  A  locator  must  take 
measures  to  inform  the  world  that  he  has  appropriated 
a  certain  portion  of  the  public  mineral  lands  and  state 
the  extent  and  boundaries  thereof.* 

2.  ACTS  INCUMBENT  ON  LOCATOR.  This  involves  the 
marking  of  the  claim  so  that  its  boundaries  can  be 
readily  traced,  making  discovery,  and  doing  whatever 
else  may  be  required  by  the  local  statute  or  district 
rule.1 

3.  ORDER  OF  PERFORMANCE.     The  order  in  which 
the  acts  of  location  are  performed  is,  generally,  imma- 
terial, provided  that  no  adverse  right  intervenes.2 


§  177]  ACTS  OP   LOCATION.  217 

4.  ORIGINAL  DISCOVERER.     The  original  locator  is 
the  discoverer  of  the  mineral  contained  in  the  loca- 
tion.3 

5.  RE-LOCATOR  NOT  DISCOVERER.     A  re-locator  is 
not  the  discoverer  of  the  mineral  in  the  location.    He 
is  the  appropriator  thereof.4 

6.  LIMITATION.     If  questioned  a  re-locator  cannot 
hold  the  ground  except  upon  proof  that  the  preceding 
locator  had  abandoned  or  forfeited  the  location.5 

7.  BOUNDARIES.     The  mining  act  requires  that  the 
boundaries  shall  be  so  marked  that  they  can  be  readily 
traced.6     It  does  not  define  the  manner  nor  time  of 
demarcation.7 

8.  TIME  AND  MANNER   OF   MARKING   BOUNDARIES. 
The  time  and  manner  of  marking  a  location  are  usu- 
ally prescribed  by  local  statute  or  district  rule. 

9.  ESSENTIAL  ACTS  OF  LOCATION.     The  provisions 
of  a  local  statute  or  district  rule  in  relation  to  the  time 
and  manner  of  marking  of  a  location  or  the  doing  of 
preliminary  work  on  the  discovery,  should  be  complied 
with  as  essential  acts  of  location.8 

10.  POSSIBLE  INSUFFICIENCY  OF  ACTS.    It  does  not 
necessarily  follow  that  a    compliance    with    a    local 
statute  or  district  rule  in  the  above  respects  consti- 
tutes a  sufficient  compliance  with  the  provisions  of  the 
mining  act.9 

11.  QUESTION   OF   FACT.     The   sufficiency   of   the 
marking  of  the  claim  10  or  of  the  "discovery"  work  ll 
is  a  question  of  fact. 

12.  WHAT  CONTROLS.     The  conformation  and  con- 
dition of  the  ground  located  with  the  character  and 
extent  of  the  markings  ultimately  control  as  to  the 
sufficiency  of  the  demarcation.12 

13.  MONUMENTS   AS   BOUNDARIES.     Monuments  at 
the  corners  of  a  claim  do  not  mark  the  boundaries. 
They  are  only  means  by  which  the  boundaries  may  be 
traced.13    A  written  notice  posted  on  14  or  off  15  the 


218  ORIGINAL,   LOCATIONS.  [Ch.  26 

location  would  be  sufficient  if,  therefrom,  the  bound- 
aries of  the  claim  could  be  readily  traced  with  absolute 
certainty  and  without  any  practical  difficulty.16 

14.  POSITION  OF  LODE  CLAIM  MONUMENTS.    Part  or 
all  of  the  monuments  of  a  lode  location  may,  by  acci- 
dent or  design,  be  placed  upon  adjoining  ground,  al- 
though adversely  held,  if  openly  and  peaceably  done. 
It  is  immaterial  whether  the  territory  so  encroached 
upon  be  patented  or  unpatented.17 

15.  CONSENT  OF  OWNER.    The  consent  of  the  owner 
of  such  other  ground  is  not  essential.    Subsequent  ob- 
jection by  him  is  unavailing.18 

16.  LIMITATION.     The  right    of   such    overlapping 
locator  is  limited  to  the  ground  within  such  boundaries 
as  was  then  open  to  location.19 

17.  POSITION  OF  PLACER  CLAIM  MONUMENTS.    The 
foregoing  rule  as  to  the  position  of  monuments  of  lode 
claims  does  not  apply  to  placer  claims.20 

In  the  states  of  California21  and  Nevada,22  a 
placer  location  is  sufficiently  marked  by  posting  a 
notice  of  location  thereon  and  by  a  reference  to  legal 
subdivisions,  if  upon  surveyed  lands,28  otherwise,  in 
the  same  manner  that  a  lode  claim  is  ordinarily  lo- 
cated. In  the  state  of  "Washington  a  placer  location 
may  be  made  and  described  by  legal  subdivisions, 
but  it  must  still  be  marked  the  same  as  other  loca- 
tions.24 

18.  POSSIBLE  DISCREPANCY.    A  danger  in  pursuing 
the  former  course  is  the  loss  of  corners  or  the  possible 
discrepancy  between  the  official  field  notes  of  the  pub- 
lic survey  and  the  locus  of  the  ground.    In  which  case 
the  survey  must  control.25 

19.  CHANGING  POSITION  OF  MARKS.    The  position  of 
the  monuments,  or  any  of  them,  may  be  changed  so  as 
to  include  land  open  to  location  and  not  originally  em- 
braced in  the  claim;26   or  to  draw  in  the  lines  to 


§  177]  ACTS'  OF  LOCATION.  219 

avoid  an  excess,27  or  for  the  purpose  of  paralleling 
the  end  lines,28 

20.  OBLITERATION  OF  MARKS.     The  subsequent  ob- 
literation or  removal  of  the  marks,  if  without  the  act 
or  fault  of  the  claimant  will  not  divest  him  of  title  to  a 
claim  otherwise  valid.29 

21.  No  PRESUMPTION.    There  is  no  presumption  as 
to  boundary  marks  on  old  claims.30     If  questioned 
their  former  existence  must  be  established.31  , 

22.  BY  WHOM  THE  MARKS  MAY  BE  PLACED.    The 
boundary  marks  may  be  those  placed  by  the  original 
locator  or  those  placed,  adopted  or  repaired  by  a  sub- 
sequent claimant.32 

23.  END  LINES.    The  end  lines  of  a  lode  claim  are 
those  which  cross  the  vein  or  lode  at  the  surface,33  at 
any  angle  34  or  variation  from  the  true  dip.35     They 
extend  downward  continued  in  their  own  direction, 
either  way,  horizontally.36     If  laid  along  the  vein  or 
lode  they  are  side  lines.37     If  the  end  lines  are  not 
parallel  with  each  other  the  claimant  has  no  extra- 
lateral  rights.38    They  may  be  made  parallel  and  the 
right  to  follow  the  dip  be  thus  obtained.39 

If  the  end  lines  converge  the  extra-lateral  right  is 
confined  to  the  area  embraced  by  such  lines.40 

24.  EFFECT  OF  ESTABLISHING  END  LINES.    The  ex- 
istence of  end  lines  is  essential  to  the  extra-lateral 
right.41    When  once  established  they  are  the  end  lines 
of  all  veins  or  lodes  having  their  apexes  within  the 
location.42    End  lines  cannot  be  drawn  at  right  angles 
to  the  strike  of  all  veins  or  lodes  within  the  claim  if 
they  do  not  run  parallel  with  each  other  43  although 
there  may  be  different  veins  or  lodes  with  different 
dips  therein.44 

25.  QUESTION  OF  FACT.    Whether  the  end  lines  are 
substantially  parallel  or  not  is  a  question  of  fact  45  of 
which  the  patent  is  conclusive  evidence.40 


220  ORIGINAL   LOCATIONS.  [Ch.  26 

26.  CONSTRUCTIVE  END  LINES.     End  lines  may  be 
judicially  constructed  within  the  surface  lines  of  a 
lode  location.47 

27.  SIDE  LINES.    The  side  lines  of  a  lode  location 
are  those  which  are  laid  along  the  course  or  strike  of  a 
vein  or  lode.48    If  laid  across  the  vein  or  lode  they  be- 
come end  lines  49  whether  so  intended  by  the  locator 
or  not.50 

28.  IRREGULARITY  OF  SIDE  LINES.    While  side  lines 
should  be  equidistant  51  they  may  be  irregular  52  and 
of  unequal  width,  not  exceeding  300  feet  on  either  side 
of  the  center  of  the  vein  or  lode  at  the  surface.53 

29.  AGREED  LINES.    Boundary  lines  may  be  agreed 
upon  between,54  or  acquiesced  in  by,55  the  owners  of 
the  adjoining  claims  or  be  fixed  by  conveyance.56 

*  Duncan    v.    Eagle    Rock    Co.,    48    Colo.    569;    see    Zeiger   v. 
Dowdy,   (Ariz.)   114  Pac.  765. 

1.  Belk   v.   Meagher,    104    U.    S.    279;   Dwinnell    v.   Dyer,    145 

Cal.  12;  see  Charlton  v.  Kelly,  156  Fed.  433;  Eaton  v. 
Norris,  131  Cal.  561;  McKay  v.  McDougall,  25  Mont. 
258;  Street  v.  Delta  Co.,  42  Mont.  371;  Gleeson  v.  Martin 
White  Co.,  13  Nev.  442. 

2.  Chrisman   v.   Miller,    197   U.   S.    313;    Erwin   v.    Perego,    93 

Fed.  608;  Uinta  Co.  v.  Creede  Co.,  119  Fed.  164;  Dwin- 
nell v.  Dyer,  ante;  Green  v.  Garvin,  11  Cal.  A.  506; 
Beals  v.  Cone,  27  Colo.  473. 

3.  Zerres  v.  Vanina,  134  Fed.  610. 

4.  Id. 

5.  Id.;   Bingham   Co.   v.   Ute   Co.,   181   Fed.    748;    St.   John   v. 

Kidd,  26  Cal.  263;  Oreamuno  v.  Uncle  Sam  Co.,  1  Nev. 
215. 

6.  Doe  v.  Waterloo  Co.,  70  Fed.  455;  Eaton  v.  Norris,  ante. 

7.  Del  Monte   Co.   v.   Last  Chance  Co.,   171  U.   S.   55.     Under 

the  mining  act  any  natural  or  artificial  physical 
marks  or  objects  or  writings  alone  or  in  connection 
therewith  that  serve  to  define  the  boundaries  of  the 
claim  upon  the  surface  are  sufficient.  Haws  v.  Vic- 
toria Copper  Co.,  160  U.  S.  303;  Book  v.  Justice  Co.,  58 
Fed.  106;  Oregon  King  Co.  v.  Brown,  119  Fed.  48;  Charl- 
ton v.  Kelly,  ante;  Worthen  v.  Sidway,  72  Ark.  215; 
Miller  v.  Chrisman,  140  Cal.  440.  In  California  any 
marking  on  the  ground,  whether  by  stakes,  monuments 
or  written  notices  whereby  the  boundaries  of  the  loca- 
tion can  be  readily  traced  is  sufficient.  See  C.  C.  §  1426 
et  seq. 

8.  Butte  City  Co.  v.  Baker,  196  U.  S.  119;  Ledoux  v.  Fores- 

ter, 94  Fed.  600;  Dutch  Flat  co.  v.  Mooney,  12  Cal. 
534;  Myers  v.  Spooner,  55  Cal.  257. 

9.  Charlton  v.  Kelly,  ante. 

As  a  general  rule  it  is  sufficient  if  the  center  line  of 
a  lode  claim  be  marked  by  three  stakes  or  monuments 


§  177]  ACTS  OF  LOCATION.  221 

— one  at  the  center,  and  one  at  each  end — upon  the 
center  one  of  which  is  placed  the  location  notice  stat- 
ing the  direction  of  the  lode  with  reference  to  the 
points  of  the  compass,  and  declaring  the  stake  or  mon- 
ument to  be  the  limit  stake  or  monument  of  the  lode 
in  the  direction  mentioned  in  the  notice  upon  it,  as,  to 
illustrate,  the  east  and  west  end  line  of  the  lode  (nam- 
ing it).  In  addition  to  the  foregoing  a  stake  or  monu- 
ment may  be  placed  at  each  corner  of  the  surface  of 
the  claim,  designating  which  corner  it  is  with  refer- 
ence to  the  points  of  the  compass,  and  also  containing 
the  name  of  the  claim. 

It  may  be  further  necessary  to  blaze  trees  along  the 
line  of  the  location,  or  cut  away  brush,  or  set  more 
stakes  at  such  distances  that  they  may  be  seen  from 
one  to  another,  or  dig  up  the  ground  in  a  way  to  indi- 
cate the  lines  so  that  the  boundaries  of  the  claim  may 
be  readily  traced.  Ledoux  v.  Forester,  ante;  see  Book 
v.  Justice  Co.,  ante.  The  fact  that  the  ground  sought 
to  be  located  is  extremely  rough  and  mountainous  does 
not  relieve  the  locator  of  obligation  to  properly  mark 
the  boundaries  of  his  location.  Gird  v.  Cal.  Oil  Co.,  60 
Fed.  531.  See  Brockbank  v.  Albion  Co.,  29  Utah,  367; 
but  see  Howeth  v.  Sullenger,  113  Cal.  547. 

10.  Filers   v.    Boatman,    111   U.    S.    356;    Book   v.    Justice    Co., 

ante;  Meydenbauer  v.  Stevens,  78  Fed.  787;  Yreka  Co. 
v.  Knight,  133  Cal.  544. 

11.  Nichols  v.  Williams,  38  Mont.  552. 

12.  Book   v.    Justice   Co.,   ante;    Charlton  v.   Kelly,    ante;    see 

note  9,  ante. 

13.  Gleeson  v.  Martin  White  Co.,  ante. 

14.  McKinley  Creek  Co.  v.  United  Alaska  Co.,   183  U.  S.   563; 

see  Worthen  v.  Sidway,  ante. 

15.  Haws  v.  Victoria  Copper  Co.,  ante;    Kern  Oil  Co.  v.  Craw- 

ford, 134  Cal.  298;    see  Worthen  v.  Sidway,  ante. 

16.  See  Gleason  v.  Martin  White  Co.,  ante;  see  also  McKinley 

Creek  Co.  v.  Alaska  United  Co.,  ante.  All  objects 
or  monuments  placed  upon  the  ground,  either  at  the 
time  of  the  location  or  subsequently,  whether  intended 
as  monuments  or  not,  may  be  considered  if,  in  fact, 
they  help  to  mark  it.  Eaton  v.  Norris,  ante. 

17.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante;  Bunker  Hill  Co. 

v.  Empire  State  Co.,  134  Fed.  268;  Grassy  Gulch  Claim, 
30  L.  D.  191;  Hidee  Co.,  30  L.  D.  420;  W.  Granite  Co.  v. 
Granite  Co.,  7  Mont.  356;  see  Mont.  Co.  v.  Clark,  42 
Fed.  626;  see  §180-3,  post. 

18.  Bunker  Hill  Co.  v.  Empire  State  Co.,  ante. 

19.  See  Del  Monte  Co.  v.  Last  Chance  Co.,  ante. 

20.  Stenfjeld  v.  Espe,   171  Fed.   825. 

21.  C.  C.   1426c. 

•22.  Nev.  Comp.  Laws.  §  220. 

23.  See  Reins  v.  Murray.  22  L.  D.  409;  Kern  Oil  Co.  v.  Craw- 

ford, ante;    Saxtnn  v.  Parrjv  47  Colo.  263. 

24.  Hem.  &  Ball.  C.  &  S..  §  7367. 

25.  Goss  v.  Golinsky,  12  Cal.  A.   71:  Brown  v.  Tarraham  Co., 

3  Cal.  A.  474;  see  Kern  Co.  v.  Crawford,  ante. 

26.  Sanders    v.    Noble,    22    Mont.    110;    see    Lindley    on    Mines 

(2d  ed.),  §  396. 

27.  McPherson  v.  Julius,   17  S.  Dak.   98. 

28.  Doe  v.  Sanger,  83  Cal.  203. 


222  ORIGINAL  LOCATIONS.  [Ch.  26 

29.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante;  Book  v.  Justice 

Co.,  ante;  Smith  v.  Newell,  86  Fed.  56;  Tonopah  Co,  v. 
Tonopah  Co.,  125  Fed.  408. 

30.  Temescal  Co.  v.  Salcido,  137  Cal.  211. 

31.  Daggett  v.  Yreka  Co.,  149  Cal.  357. 

32.  Conway   v.   Hart,   129   Cal.   480;   Brockbank   v.   Albion   Co., 

ante. 

33.  Flagstaff  Co.   v.   Tarbet,    98   U.   S.   463;   Daggett   v.   Yreka 

Co.,  ante;  S.  C.  R.  Co.  v.  O'Donnell,  3  Cal.  A.  382. 

34.  Last  Chance  Co.  v.  Bunker  Hill  Co.,   131  Fed.  579. 

35.  Bunker  Hill  Co.  v.  Empire  State  Co.,  ante;  s.  c.   134  Fed. 

268. 

36.  Flagstaff  Co.   v.  Tarbet,  ante. 

37.  Id. 

38.  Iron  Co.  v.  Elgin  Co.,   118  U.  S.  196. 

39.  Doe   v.   Waterloo   Co.,    54    Fed.    935;    Tyler   v.    Sweeny,    54 

Fed.  284. 

40.  Carson  City  Co.  v.  N.  Star  Co.,  73  Fed.  597. 

41.  Iron  Co.  v.  Elgin  Co.,  ante. 

42.  Cosmopolitan  Co.  v.  Foote,   101  Fed.  518;  St.  Louis  Co.  v. 

Mont.  Co.,  104  Fed.  664;  see  Flagstaff  Co.  v.  Tarbet, 
ante;  Argentine  Co.  v.  Terrible  Co.,  122  U.  S.  478;  Del 
Monte  Co.  v.  Last  Chance  Co.,  ante;  Walrath  v.  Cham- 
pion Co.,  63  Fed.  552;  Jefferson  Co.  v.  Anchoria  Co.,  32 
Colo.  176. 

43.  Cosmopolitan  Co.  v.  Foote,  ante;    Last  Chance  Co.  v.  Bun- 

ker Hill  Co.,  ante. 

44.  Iron  Co.  v.  Elgin  Co.,  ante. 

45.  Cheesman  v.  Hart,  42  Fed.  98. 

46.  Doe  v.  Waterloo  Co.,  ante. 

47.  Argonaut   Co.   v.   Kennedy   Co.,    131    Cal.    15;    affd.    in    189 

U.  S.  1;  King  v.  Amy  Co.,  152  U.  S.  222;  Doe  v.  Sanger, 
ante. 

48.  Flagstaff   Co.   v.   Tarbet,    ante;   Argentine   Co.   v.   Terrible 

Co..  ante;  King  v.  Amy  Co.,  ante;  Last  Chance  Co.  v. 
Tyler,  157  U.  S.  683;  Del  Monte  Co.  v.  Last  Chance  Co., 
ante;  Last  Chance  Co.  v.  Bunker  Hill  Co.,  ante. 

49.  Bunker  Hill  Co.  v.  Empire  State  Co.,  ante;  S.  C.  R.  Co.  v: 

O'Donnell,   ante. 

50.  King  v.  Amy  Co.,  ante;    Bunker  Hill  Co.  v.  Empire  State 

Co.,  ante. 

51.  Meydenbauer     v.    Stevens,    ante;     Belligerent     Claims,    35 

L.  D.  22;  McElligott  v.  Krogh,  151  Cal.  126;  see  Harper 
v.  Hill,  (Cal.)  113  Pac.  162. 

52.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante. 

53.  Rev.  Stats.,  §2320;    Meydenbauer  v.  Stevens,  ante. 

54.  Eureka  Co.   v.   Richmond  Co.,   8   Fed.   Gas.   4548;   Tonopah 

Co.  v.  Tonopah  Co.,  ante;  Empire  State  Co.  v.  Bunker 
Hill  Co.,  131  Fed.  591;  Argonaut  Co.  v.  Kennedy  Co., 
ante. 

55.  Mont.  Co.  v.  St.  Louis  Co.,  183  Fed.  51. 

56.  Mont.  Co.  v.  Boston  Co.,  22  Mont.  159. 


§  178]          AMENDED  OR  ADDITIONAL  LOCATION.  223 

CHAPTEE  XXVII. 

SUBSEQUENT    LOCATIONS. 

§  178.  Amended  or  additional  location — basis — office  of  amend- 
ment— contents  of  notice — one  instrument. 

§  179.  Re-location — when  void — assumption  of  risk — statu- 
tory bar  to  re-location — fraudulent  re-location — ex- 
ception— improvements. 

§  180.  Overlapping  locations — basis — boundary  marks — con- 
sent of  owner — re-location — application  for  patent — 
laches  and  limitation. 

§  181.  Lode  location  within  placer  claim — presumption — tres- 
pass— not  trespass — limitation  of  area. 

§  182.  Location  of  cross  lodes. 

§  178.    Amended   or   Additional   Location.      The 

mining  act  makes  no  provision  for  an  amended  or  ad- 
ditional location.1  It  may  be  made  as  of  course.2  It 
relates  back  to  the  original  location  and  completes  the 
same.3  It  is  not,  strictly  speaking,  a  re-location.4 

2.  BASIS.     It  must  be  based  upon  a  pre-existing 
but  not  necessarily  perfect  location.5     It  works  no 
forfeiture   of  previously  acquired  rights  not  incon- 
sistent with  the  amendment.6     It  must  not  interfere 
with  the  rights  of  others  acquired  between  the  time  of 
making  the  original  location  and  the  amendment.7    It 
does  not  require  additional  discovery  in  the  added 
ground,   physical  possession  8  nor  additional  annual 
expenditure  thereon.9 

3.  OFFICE  OF  AMENDMENT.    It  may  be  designed  to 
include  additional  territory,10  but  not  to  effect  a  con- 
solidation of  independent  mining  claims.11 

It  may  cure  defects  12  or  supply  omissions  13  in  the 
original  location  14  or  in  the  posted  notice  or  record,15 
It  may  serve  to  change  the  name  of  the  claim.16 

4.  CONTENTS  OF  NOTICE.    Unless  required  by  local 
statute  or  district  rule  an  amended  location  notice 
need  not  state  the  purpose  for  which  it  is  made.17 

5.  ONE  INSTRUMENT.    The  original  notice  and  the 
amendment  are  deemed  to  be  one  instrument  though 
perhaps  neither  as  a  whole  is  absolutely  correct  and 


224  SUBSEQUENT   LOCATIONS.  [Ch.  27 

in  conformity  to  the  law.  if  in  substantial  compliance 
therewith.18 

1.  John  C.  Teller,  26  L.  D.  484. 

2.  Thompson  v.  Spray,  72  Cal.  528. 

3.  Tonopah   Co.   v.   Tonopah   Co.,    125   Fed.    389;   Bunker   Hill 

Co.  v.  Empire  State  Co.,  134  Fed.  268;  McGinnis  v. 
Egbert,  8  Colo.  41;  see  Brown  v.  Or.  King  Co.,  110  Fed. 
728. 

4.  Belk  v.  Meagher,   104  U.   S.   279;  Cheesman  v.   Shreve,   40 

Fed.  787;  Zerres  v.  Vanina,  150  Fed.  564;  John  C.  Tel- 
ler, ante;  Quigley  v.  Gillett,  101  Cal.  462. 

5.  John  C.  Teller,  ante;  Sullivan  v.  Sharp,  33  Colo.  346;  Mil- 

waukee Co.  v.  Gordan,  37  Mont.  209;  see  Washington 
Co.  v.  O'Laughlin,  46  Cblo.  503. 

6.  Id.;   Street  v.   Delta  Co.,   42  Mont.    371;   see  Kirk  v.   Mel- 

drum,  28  Colo.  453. 

7.  Id.;  Street  v.  Delta  Co.,  ante;   see  Kirk  v.  Meldrum,  ante. 

8.  Tonopah  Co.  v.  Tonopah  Co.,   ante;   Hallack  v.  Traber.   23 

Colo.  14;  but  see  Biglow  v.  Conradt,  159  Fed.  868; 
Weed  v.  S'nook,  144  Cal.  439. 

9.  Tonopah  Co.  v.  Tonopah  Co.,  ante;  Hallack  v.  Traber,  ante. 

10.  Seymour  v.  Fisher,  16  Colo.  188;     Sullivan  v.  Sharp,  ante; 

see  Garden  Gulch  Bar  Placer,   38  L.  D.  28. 

11.  Garden  Gulch  Bar  Placer,  ante. 

12.  Porter  v.  Tonopah  Co.,   133   Fed.   756;   Strepey  v.  Stark.   7 

Colo.  614;  Frisholm  v.  Fitzgerald,  25  Colo.  290;  Morri- 
son v.  Regan,  8  Ida.  291;  see  Jordan  v.  Duke,  6  Ariz.  55. 

13.  Sullivan  v.  Sharp,  ante. 

14.  Thompson  v.   Spray,   ante;   Wilson   v.   Freeman,    29   Mont. 

470. 

15.  Bunker  Hill   Co.  v.   Empire  State  Co.,   ante;   Tonopah  Co. 

v.   Tonopah   Co.,   ante;  Sam  H.   Auerbach,   29  L..  D.   208; 

Wiltsee  v.  King  Co.,  7  Ariz.  95;  Thompson  v.  Spray, 
ante. 

16.  Shoshone  Co.   v.   Rutter,  87   Fed.   801;   Seymour  v.   Fisher, 

ante;  Butte  Con.  Co.  v.  Barker,  35  Mont.  327. 

17.  Tonopah  Co.  v.  Tonopah  Co.,  ante;   Johnson  v.  Young,  18 

Colo.   625. 

18.  Duncan  v.  Fulton,   15  Colo.  A.   140;  see  Giberson  v.  Tuo- 

lumne  Co.,  41  Mont.  396. 

§  179.  Re-location.  A  subsequent  location  of  a 
forfeited  or  abandoned  claim  is  a  re-location  and  not 
an  original  location.1  It  is  made  in  the  same  manner 
and  is  subject  to  the  same  conditions  as  an  original 
location.2 

2.  WHEN  VOID.     It  is  void  if  entirely  upon. land 
actually  covered  by  a  valid  and  subsisting  location  -0> 
or  made  under  a  fraudulent  abandonment.321 

3.  ASSUMPTION    OF    RISK.     A  re-location    may  be 
made  without  awaiting  a  judicial  determination  as  to 


§  179]  RE-LOCATION.  225 

whether  or  not  the  claim  was  open  to  re-location,  but 
the  re-locator  assumes  the  risk  of  possible  future  liti- 
gation over  his  action.4 

4.  STATUTORY  BAR  TO  KE-LOCATION.     A  valid  re- 
location may  be  made  by  a  claimant  who  has  failed  to 
make  the  requisite  annual  expenditure  upon  his  loca- 
tion, either  in  his  own  name,5  or  in  that  of  a  third 
party,6  except  by  statutory  enactment,    within    the 
states  of  California  7  and  Montana.8 

5.  FRAUDULENT  RE-LOCATIONS.    A  vendor  of  prop- 
erty, not  acting  in  good  faith,9  a  lessee  in  violation  of 
the  terms  of  his  lease,10  a  mortgagor  for  the  purpose 
of  defeating  a  mortgage,11  or  a  co-tenant  for  his  own 
exclusive   benefit 12    may   not   make    an    adverse   re- 
location. 

An  agent  cannot  re-locate,  nor  connive  at  a  re-loca- 
tion in  hostility  to  his  principal.13  A  watchman  may 
not  adversely  re-locate  the  property  formerly  in  his 
care.14 

6.  EXCEPTION.     The  existence  of  a  partnership  or 
the  fact  of  previous  employment  may  not  perhaps 
create  a  trust  in  a  location  or  re-location  which  is 
inimical  to  co-partners  or  the  former  employer.15 

7.  IMPROVEMENTS     All   improvements   which   are 
attached  to  or  become  a  part  of  the  realty  pass  to  the 
re-locator.16    But  they  cannot  be  counted  as  part  of 
the  expenditure  necessary  in  patent  proceedings.17 

1.  Zerres  v.  Vanina,  150  Fed.  564. 

2.  Armstrong  v.   Lower,    6   Colo.   393;    see  Belk  v.  Meagher, 

104  U.  S.  279;    Porter  v.  Tonopah  Co.,  133  Fed.  756. 

3.  Brown  v.  Gurney,  201  U.  S.  184;    Farrell  v.  Lockhart,  210 

U.  S.  142;  Porter  v.  Tonopah  Co.,  ante;  Malone  v.  Jack- 
son, 137  Fed.  787;  Swanson  v.  Kettler,  17  Ida.  321;  Ber- 
quist  v.  W.  Va.  Co.,  (Wyo.)  106  Pac.  673;  see  Lavag- 
nino  v.  Uhlig,  198  U.  S.  443.  The  rule  is  well  estab- 
lished that  the  rights  which  a  valid  location  of  a 
claim  secures  to  the  locator  and  his  grantors  and 
successors  are  clearly  defined  by  law  and  are  wholly 
unaffected  by  any  subsequent  conflicting  location. 
Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55;  Street 
v.  Delta  Co.,  42  Mont.  371. 


226  SUBSEQUENT   LOCATIONS.  [Ch.  27 

Re-location  cannot  be  effected  by  interference  with 
the  performance  of  annual  labor.     Garvey  v.  Elder,  21 
S.  Dak.  77;    see  §180,  note  11,  post. 
3a.  McCann  v.  McMillan,  129  Gal.  350. 

4.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante. 

5.  Hunt   v.    Patchin,    35    Fed.    816;     Warnock   v.    DeWitt,    11 

Utah  324;  but  see  McCann  v.  McMillan,  ante;  Miles  v. 
Kennan,  27  Colo.  502;  see  Malone  v.  Jackson,  ante;  but 
see  Lindley  on  Mines,  (2d  ed.)  §  405. 

It  is  the  entry  of  a  new  claimant,  with  intent  to  re- 
locate the  property,  and  not  lapse  of  time  that  deter- 
mines the  right  of  the  original  claimant.  Little  Gun- 
nell  Co.  v.  Kimber,  15  Fed.  Cas.  8402. 

6.  N.  Noonday  Co.   v.   Orient  Co.,   1   Fed.   522;   see  Alexander 

v.  Sherman,  2  Ariz.  326;  but  see  Lindley  on  Mines,  ante. 

7.  The  Californian  mining  act  provides  that  "The  failure  or 

neglect  of  any  locator  of  a  mining  claim  to  perform 
development  work  of  the  character,  in  the  manner 
-  and  within  the  time  required  by  the  laws  of  the 
United  States,  shall  disqualify  such  locators  from  re- 
locating the  ground  embraced  in  the  original  location 
or  mining  claim  or  any  part  thereof  under  the  mining 
laws,  within  3  years  after  the  date  of  his  original 
location  and  any  attempted  re-location  thereof  by  any 
of  the  original  locators  shall  render  such  location 
void."  C.  C.,  §  1426s;  see  also  McCann  v.  McMillan, 
ante. 

8.  Mont.    Stats.    1907,   p.    22. 

9.  Minah  Co.  v.  Briscoe,  89  Fed.  891. 

10.  Stewart    v.    Westlake,    148    Fed.    349;    Silver    City    Co.    v. 

Lowry,   19  Utah  334;  s.  c.  179  U.  S.  196. 

11.  Alexander  v.  Sherman,  ante. 

12.  Stevens  v.  Grand  Cent.  Co.,  133  Fed.  28;    Speed  v.  McCar- 

thy, 181  U.  S.  269.  One  of  several  co-tenants  after  de- 
fault by  all  may  re-locate  for  his  own  benefit.  Strang 
v.  Ryan,  46  Cal.  33;  Doherty  v.  Morris,  11  Colo.  12; 
Saunders  v.  Mackey,  5  Mont.  527. 

13.  Haws  v.  Victoria  Copper  Co.,  160  U.  S.  303;    Page  v.  Sum- 

mers, 70  Cal.  121;  Lockhart  v.  Rollins,  2  Ida.  (Hasb.) 
540;  Largey  v.  Bartlett,  18  Mont.  265. 

14.  Lockhart  v.  Rollins,  ante;  see  Lockhart  v.  Leeds,  195  U.  S. 

427. 

15.  Lockhart   v.   Johnson,   181  U.    S.   516;     Doherty   v.   Morris, 

ante;    Thallman  v.  Thomas,  111  Fed.  277. 

16.  Yankee   Lode,    30    L.   D.    289;   Merritt  v.   Judd,    14   Cal.    59; 

Roseville  Co.  v.  Iowa  Co..  15  Colo.  29. 

17.  Yankee  Lode,  ante;  Russell  v.  Wilson  Creek  Co.,  30  L.  D. 

State  Co.,  109  Fed.  538;  Mono  Fraction,  31  L.  D.  121,  34. 

§  180.  Overlapping  Locations.  Mining  claims 
often  overlap  one  another  l  through  accident,  innocent 
mistake  2  or  from  design.3 

It  does  not  necessarily  follow  that  either  must  fail 
nor  that  the  conflicting  area  shall  be  awarded  to  the 
senior  locator.4  Acts  or  circumstances  entirely  con- 
sistent with  the  true  order  of  location  may  intervene 


§  180]  OVERLAPPING   LOCATIONS.  227 

which  require   that  the   overlap  be   awarded  to  the 
junior  locator.5 

2.  BASIS.     At  the  date  of  the  location  the  ground 
located  must  be  partly  laid  upon  the  public  domain.6 

3.  BOUNDARY  MARKS.    The  boundary  marks  of  lode 
locations  may  be  placed  upon  or  across  the  surface  of 
a  prior  location,  or  intervening  ground,7  whether  pat- 
ented or  unpatented,  mining  or  agricultural  ground,8 
and  the  extra-lateral  right  be  thus  secured.9 

4.  CONSENT  OF  OWNER.    The  consent  of  the  claim- 
ant or  owner  is  not  essential  to  the  making  of  the 
overlap.    In  the  absence  thereof  it  must  be  peaceably 
made.10 

5.  RE-LOCATION.    Upon  forfeiture  or  abandonment 
by  the  former  locator  the  overlapping  unpatented  area 
should  be  re-located  by  the  junior  locator.11 

6.  APPLICATION    FOR    PATENT.     A    failure  of  the 
senior  locator  to  adverse  an  application  for  patent  by 
the  junior  locator  and  which  includes  the  overlap  will 
vest  the  title  thereto  in  such  applicant.12 

7.  LACHES  AND  LIMITATION.     The  overlapping  lo- 
cator may,  possibly,  acquire  the  conflicting  area  by 
laches  or  limitation.13 

1.  Del  Monte  Co.   v.   Last  Chance  Co.,   171  U.   S.   55;    Doe  v 

Tyler,  73  Cal.  21. 

2.  Doe  v.  Tyler,  ante. 

3.  Del   Monte   Co.   v.   Last   Chance   Co.,   ante;   see   Biglow  v. 

Conradt,  159  Fed.   868;  Weed  v.  Snook,  144  Cal.  439. 

4.  Id.     U.  S.  Co.  v.  Lawson,  134  Fed.  769;  Johanson  v.  White, 

160  Fed.  901;  Doe  v.  Tyler,  ante;  Street  v.  Delta  Co., 
42  Mont.  371. 

5.  U.    S.    Co.    v.    Lawson,    ante;     Johanson    v.    White,    ante; 

Garthe  v.  Hart,  73  Cal.  541;  Gemmell  v.  Swain,  28 
Mont.  331. 

6.  Belk  v.  Meagher,  104  U.  S.  279;    Brown  v.  Gurney,  201  U. 

S.  184;  Farrell  v.  Lockhart,  210  U.  S.  142;  Crown 
Point  Co.  v.  Buck,  97  Fed.  462;  Bunker  Hill  Co.  v. 
Empire  State  Co.,  134  Fed.  268;  Swanson  v.  Kettler,  17 
Ida.  321;  Bergquist,  v.  W.  Va.  Co.,  (Wyo.)  106  Pac. 
673;  see  Lavagnino  v.  Uhlig,  198  U.  S.  443. 

7.  Del  Monte   Co.   v.   Last  Chance  Co.,   ante;    Alice  Lode,   30 

L.  D.   481. 

8.  Hidee  Co.,  30  L.  D.  420;  cited  in  Bunker  Hill  Co.  v.  Empire 

State  Co.,  109  Fed.  538;  Mono  Fraction,  31  L.  D.  121.  34 


228  SUBSEQUENT  LOCATIONS.  [Ch.  27 

Li.  D.  44;  McPherson  v.  Julius,  17  S.  Dak.  98;  see 
§  177-14,  17,  ante. 

9.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante;  -Empire  State 
Co.  v.  Bunker  Hill  Co.,  131  Fed.  591;  Bunker  Hill  Co.  v. 
Empire  State  Co.,  ante;  Alice  Lode,  ante.  But  see 
A.  C.  M.  Co.  v.  Court,  25  Mont.  504. 

10.  Del  Monte  Co.  v.  Last  Chance  Co.,  ante;    Bunker  Hill  Co. 

v.  Last  Chance  Co.,  ante;  Hidee  Co.,  ante;  Cleary  v. 
Skiffich,  28  Colo.  362;  McElligott  v.  Krogh,  151  Cal. 
126;  see  Mont.  Co.  v.  Clark,  42  Fed.  626. 

11.  Oscamp  v.   Crystal  River  Co.,    58   Fed.   293;   Bingham   Co. 

v.  Ute  Co.,  181  Fed.  748;  Johnson  v.  Young,  18  Colo. 
625;  Moorhead  v.  Erie  Co.,  43  Colo.  408;  Farrell  v. 
Lockhart,  ante;  Slavonian  Co.  v.  Perasich,  7  Fed.  331; 
Biglow  v.  Conradt,  ante;  McCann  v.  McMillan,  129  Cal. 
350.  A  location  made  within  the  limits  of  ground 
already  appropriated  is  void  ab  initio.  Street  v.  Delta 
Co.,  ante. 

12.  Lavagnino  v.  Uhlig,  ante;    Bingham  Co.  v.  Ute  Co.,  ante. 

13.  Oscamp  v.  Crystal  River  Co.,  ante;    see  Farrell  v.  Lock- 

hart,  ante;  Brown  v.  Gurney,  ante;  Wilson  v.  Freeman, 
29  Mont.  470;  Moorhead  v.  Erie  Co.,  ante;  Nash  v.  Mc- 
Namara,  30  Nev.  114;  Bingham  Co.  v.  Ute  Co.,  ante; 
see  §  172-6,  ante. 


§  181.  Lode  Location  within  Placer  Claim.  A  vein 
or  lode  which  is  of  such  a  character  as  to  exclude  it 
from  a  placer  location  and  which  is  not  included  in  a 
patent  therefor  may  be  adversely  located.1 

2.  PRESUMPTION.     The  presumption  is  in  favor  of 
the  placer  claimant.2 

3.  TRESPASS.     The  vein  or  lode  must  be  known  to 
exist  as  prospecting  within  the  limits  of  a  placer  loca- 
tion without  the  will  or  consent  of  the  placer  claimant 
is  prohibited.3 

4.  NOT  TRESPASS.     It  is  held  that  a  subsequent 
location  of  a  vein  or  lode  which  is  exempt  from  the 
placer  claim  is  not  a  trespass.4 

5.  LIMITATION  OF  AREA.    A  valid  subsequent  lode 
location  within  the  limits  of  a  placer  claim  limits  the 
placer  claimant  to  the  remainder  of  the  placer  loca- 
tion, although  the  entire  area  be  included  in  a  patent 
previously  issued  for  the  placer  claim.5 

1.  Conaghy  v.  Doyle,  32  Colo.  92. 

2.  Iron  Co.  v.  Campbell,   135  U.  S.  286;    see  Grand  Cent.  Co. 

v.  Mammoth  Co.,  29  Utah  490. 

3.  Clipper  Co.  v.  Eli  Co.,  194  U.  S.   220. 


§  182]  LOCATION  OF  CROSS  LODES.  229 

4.  Mt.  Rosa  Co.  v.  Palmer,  26  Colo.  56. 

5.  Reynolds    v.    Iron    Co.,    116    U.    $.    687;     Mt.    Rosa    Co.    v. 

Palmer,    ante;    see-Washoe   Co.   v.    Junila,    (Mont.)    115 
Pac.  917. 

§  182.  Location  of  Cross  Lodes.  A  subsequent 
locator  of  a  vein  or  lode  which  crosses  a  prior  location 
obtains  only  a  right  of  way  in  such  location.1 

1.  Wilhelm  v.  Silvester,  101  Cal.  358;  Calhoun  Co.  v.  Ajax 
Co.,  27  Colo.  1  affd.  in  182  U.  S.  499;  see  Del  Monte  Co. 
v.  Last  Chance  Co.,  171  U.  S.  55. 


CHAPTEE  XXVIII. 

NOTICE   OF  LOCATION. 

§185.  In  general  —  supplementary  legislation  —  contents  of 
record — additional  recitals — not  necessarily  part  of 
location — substantial  compliance — oral  testimony — 
importance  of  boundaries  —  construction  of  notice  — 
sufficiency  of  notice — purpose  fulfilled. 

§  186.  The  posted  notice — evidence  of  discovery  and  appro- 
priation—  recitals  —  question  of  fact  —  description — 
name  of  lode  —  errors  in  description  —  surplusage  — 
where  posted — miners'  devices — presumption. 

§  187.  The   amended   notice — intervening  rights — evidence. 

§  188.  The  re-location  notice — void  notice — effect  of  statement 
— proof. 

§  189.  Ante-dated  notice — felony. 

§  190.  Where  recorded — county  recorder — district  recorder — 
failure  to  make  record — -  description  —  what  record 
need  not  show — question  of  fact — record  as  notice — 
record  not  notice — record  as  title — effect  of  record — 
record  as  evidence — does  not  preclude  parol  evidence 
— when  prima  facie  evidence — color  of  title. 

§  185.  In  General.  The  mining  act  does  not  re- 
quire either  the  posting  1  or  recording  2  of  a  notice  of 
location. 

2.  SUPPLEMENTARY  LEGISLATION.    The  above  mat- 
ters are  left  to  local  statute  or  district  rule.2a 

3.  CONTENTS  OF  EECORD.    When  a  record  is  made 
it  must  contain  the  name  of  the  locator,  the  name  of 
the  lode  or  placer,  the  date  of  the  location  and  such  a 
description   together  with   a  reference  to   a  natural 
object  or  permanent  monument  sufficient  to  identify 
the  claim  with  reasonable  certainty  when  such  refer- 
ence can  be  made  to  either.3 


230  NOTICE   OF   LOCATION.  [Ch.  28 

4.  ADDITIONAL   EECITALS.     Additional  recitals  are 
usually  prescribed  by  local  statute  or  district  rule;4 
the  absence  or  insufficiency  of  such  statements  or  other 
statutory  requirements,  as,  to  illustrate,  the  verifica- 
tion of  the  notice,  may  be  fatal.5 

5.  NOT  NECESSARILY  PART  OF  LOCATION.     In  the 
absence  of  a  local  statute  or  district  rule  requiring 
posting  or  recording  neither  act  is  any  part  of  a  legal 
location.6 

6.  SUBSTANTIAL  COMPLIANCE.    The  question  whether 
the  requirements  of  a  local  statute  or  district  rule 
have  been   complied  with   arises  only  upon   the   as- 
sertion of  an  adverse  claim.7     It  is  then  sufficient  to 
show  a  substantial  compliance  therewith.8 

7.  ORAL  TESTIMONY.     The  location  may  be  aided, 
or  wholly  shown  by  oral  testimony.9 

8.  IMPORTANCE  OF  BOUNDARIES.    A  location  will  be 
sustained    without    either    posting    or    recording,  al- 
though both  acts  may  be  required  by  local  law  or  dis- 
trict rule  as  acts  of  location,  provided,  the  boundaries 
of  the  claim  are  defined  and  work  is  diligently  prose- 
cuted thereon.10 

9.  CONSTRUCTION  OF  NOTICE.     The  notice  of  loca- 
tion should  be  liberally,  not  technically  construed.11 
A  location  is  not  absolutely  void  because  the  record 
may  be  indefinite,12  nor  by  reason  of  mistakes  or  im- 
perfections therein.13 

10.  SUFFICIENCY  OF  NOTICE.     The  notice  is  suf- 
ficient when  it  contains  directions  which  will  enable  a 
person  of  ordinary  intelligence  to  find  the  claim  and 
trace  the  boundaries  thereof  14  although  it  may  not 
state  the  state  or  county  or  mining  district  within 
which  it  is  situated  15  or  the  proper  legal  subdivision 
within  which  it  may  be  located,  if  the  remaining  de- 
scription  sufficiently   identifies  the  land.16     It  may 
mis-describe  the  character  of  the  monuments,17  or  mis- 
take the  courses  or  distances  of  the  boundaries,18  or  the 


§  185]  NOTICE  OP  LOCATION.  231 

points  of  the  compass.19     Such  defects  do  not  vitiate 
the  notice.20 

11.  PURPOSE  FULFILLED.  The  purpose  of  the 
notice  is  fulfilled  when  it  informs  others  of  the  ap- 
propriation of  the  ground  ;21  whether  it  does  so  or  not 
is  a  question  of  fact.22 

1.  Book  v.  Justice  Co.,   58   Fed.   106;    Walton  v.  Wild  Goose 

Co.,  123  Fed.  209;  Daggett  v.  Yreka  Co.,  149  Cal.  357. 

2.  Haws  v.  Victoria  Co.,   160   U.   S.   303;     Peters  v.   Tonopah 

Co.,   120   Fed.   587;   Anthony  v.   Jillson,   83   Cal.   296;   So. 
Cross   Co.   v.   Europa   Co.,    15   Nev.    383;   Deeny   v.    Min. 
Creek  Co.,  11  N.  M.  279;  Payton  v.  Burns,  41  Or.  430. 
2a.  Sturtevant  v.  Vogel,  167  Fed.  448. 

3.  Rev.  Stats.,  §  2324;  Hoyt  v.  Russell,  117  U.  S.  401;  M'Intosh 

v.  Price,  121  Fed.  716. 

4.  Hammer    v.    Garfield    Co.,    130    U.    S'.    291;    Butte    City    v. 

Baker,  196  U.  S.  119;  M'Intosh  v.  Price,  ante;  Purdum 
v.  Laddin,  23  Mont.  387;  see  Hickey  v.  Anaconda  Co., 
33  Mont.  46;  Wright  v.  Lyons,  45  Or.  167;  Van  Buren 
v.  McKinley,  8  Ida.  93. 

Under  the  provisions  of  the  Californian  mining1  act  a 
notice  of  a  lode  location  must  be  posted  at  the  point 
of  discovery  (C.  C.,  §  1426)  of  a  placer  claim  within  the 
boundaries  thereof  (C.  C.,  §  1426c),  of  a  tunnel  site  at 
the  face  or  point  of  commencement  of  the  tunnel  (C. 
C.,  §  1426e),  of  a  mill-site  within  the  boundaries  there- 
of. (C.  C.,  §  1426J.) 

5.  Davidson   v.   Bordeaux,   15  Mont.   245. 

6.  S'turtevant  v.  Vogel,  ante;  see  Dwinnell  v.  Dyer,  145  Cal. 

12.     The  rule  is  not  applicable  in  Alaska.     31  Stats.  327. 

7.  Hughes  v.  Ochsner,  27  L.  D.  396;    Sharkey  v.  Candiani,  48 

Or.   112. 

8.  Zerres  v.  Vanina,   134  Fed.   610;    Wells  v.  Davis,   22  Utah 

322 

9.  Londonderry  v.  United  Gold  Co.,  38  Colo.   480;    Metcalf  v. 

Prescott,  10  Mont.  283;  Seidler  v.  LaFave,  5  N.  M.  44. 

10.  Wailes  v.  Davies,  158  Fed.  667;  see  also  Zerres  v.  Vanina, 

ante;  Ford  v.  Campbell,  29  Nev.  578;  Sharkey  v.  Can- 
diani, ante. 

11.  Dwinnell  v.  Dyer,  ante;  Green  v.  Garvin,  10  Cal.  A.  330. 

12.  Walton  v.  Wild  Goose  Co.,  ante;    Zerres  v.  Vanina,  ante; 

Wailes  v.  Davies,  ante;  Wiltsee  v.  King  Co.,  7  Ariz.  95; 
Talmadge  v.  St.  John,  129  Cal.  430;  Morrison  v.  Regan, 
8  Ida.  291;  Bismarck  Co.  v.  No.  Sunbeam  Co.,  14  Ida. 
516;  Wilson  v.  Triumph  Co.,,  19  Utah  66;  Farmington 
Co.  v.  Rhymney  Co.,  20  Utah  363;  Wells  v.  Davies,  ante. 

13.  Bennett  v.   Harkrader,   158   U.   S.    441;     see  Darger  v.   Le- 

Sieur,  8  Utah  160. 

14.  Walton    v.    Wild    Goose    Co.,    ante;    Sturtevant    v.    Vogel, 

ante;  Providence  Co.  v.  Burke.  6  Ariz.  323;  Wiltsee  v. 
King  Co.,  ante;  Sanders  v.  Noble,  22  Mont.  110;  Gleeson 
v.  Martin  White  Co.,  13  Nev.  442;  Bonanza  Co.  v.  Golden 
Head  Co.,  29  Utah  159. 


232  NOTICE    OF   LOCATION.  [Ch.  28 

15.  Bramlett  v.    Flick,    23   Mont.    95;    Bonanza   Co.   v.   Golden 

Head  Co.,  ante. 

16.  Carter  v.  Bacigalupi,   83  Cal.  187;    Talmadge  v.  St.  John, 

ante.     Upon   the  subject   of  description  see  Metcalf  v. 
Prescott,   ante. 

17.  Duryea  v.  Boucher,  67  Cal.  141;  see  §149,  note  21,  ante. 

18.  Upton    v.    Larkin,    7    Mont.    449;     Hansen    v.    Fletcher,    10 

Utah   266. 

19.  Walton  v.  Wild  Goose  Co.,  ante;    Providence  Co.  v.  Burke, 

ante;  Gamer  v.  Glenn,  8  Mont.  371. 

20.  Green  v.  Garvin,   ante;    Book  v.  Justice  Co.,   ante;    Wilt- 

see  v.  King  Co.,  ante. 

21.  Gird  v.  Cal.  Oil  Co.,  60  Fed.  531;    Rush  v.  French,  1  Ariz. 

99;   Seidler  v.  LaFave,  ante. 

22.  Eilers  v.  Boatman,  111  U.  g.  356;    Reilly  v.  Berry,  2  Ariz. 

272;    Blackmore  v.  Reilly,  2  Ariz.  442. 

§  186.  The  Posted  Notice.  The  posted  notice  re- 
quired by  the  local  statute  or  district  rule  serves  as  a 
protection  to  the  locator  while  engaged  in  marking 
and  developing  his  claim.1 

2.  EVIDENCE   OF   DISCOVERY   AND   APPROPRIATION. 
The  posted  notice  is  also  some  evidence  of  discovery  2 
and  a  declaration  of  the  locator's  intention  to  pos- 
sess it.3 

3.  RECITALS.    No  particular  recitals  are  necessary 
in  the  posted  notice,  except  such  as  may  be  required 
by  local  statute  or  district  rule;   in  which  case,  it 
should  conform  thereto ; 4  otherwise  it  is  sufficient  if  it 
imparts  notice  of  the  ground  claimed.5 

4.  QUESTION    OF    FACT.      The    sufficiency  of  the 
notice  is  a  question  of  fact.6    If  it  is  uncertain  it  may 
be  aided  by  evidence  of  possession  and  the  erection  of 
monuments.7 

5.  DESCRIPTION.     A  notice  claiming  a  location  on 
"this  vein"  has  only  one  meaning.8     It  raises  an  in- 
ference that  the  notice  was  posted  on  or  in  close  prox- 
imity to  a  vein  or  lode  9  although,  as  a  fact,  no  vein 
or  lode  was  then  exposed.10 

6.  NAME  OF  LODE.     The  name  of  the  lode  is  that 
by  which  it  is  designated  in  the  notice  1:L  and  subse- 
quent   addition   thereto   is   immaterial.12     The    same 


§  186]  THE   POSTED   NOTICE.  233 

vein  or  lode  may  have  different  names  in  different 
mining  locations.13 

7.  ERRORS  IN  DESCRIPTION.     Errors  in  description 
will  not  invalidate  the  location,  if  it  can  be  sufficiently 
identified.14     Stating  an  erroneous  date  15  or  erasing 
a  locator's  name  from  the  location  notice  is  immaterial, 
unless  fraudulently  done.16    Mis-naming  some  of  the 
boundary  marks  is  not  fatal.17 

8.  SURPLUSAGE.     Unless  required  by  local  statute 
or  district  rule  the  posted  notice  need  not  contain  a 
reference  to   a  natural  object  or  permanent  monu- 
ment,18 nor  the  words  "dated  on  the  ground",19  nor  be 
a  literal  copy  of  the  record.20 

9.  WHERE  POSTED.    The  notice  is  usually  posted  at 
the  place  of  discovery  21  but  unless  its  position  is  pre- 
scribed by  local  statute  or  district  rule  the  notice  may 
be  placed  upon  or  off  the  location.22 

10.  MINERS'  DEVICES.    Miners  use  various  devices 
to  protect  the  posted  notice  from  destruction  by  the 
elements,  such  as  covering  it  with  glass,  or  folding  it 
in  a  box  and  placing  the  box  in  a  conspicuous  place,  or 
putting  the  notice  upon  a  mound  of  rocks,  folding  it 
and  partially  covering  it  with  rock,23  or  putting  the 
notice  in  a  tin  can.24    A  substantial  compliance  with 
the  law  is  sufficient.25 

11.  PRESUMPTION.    It  may  be  presumed  from  a  re- 
cital to  that  effect  in  the-  record  that  the  notice  of 
location  was  in  fact  posted.26 

1.  Erhardt  v.  Boaro,  113  U.  S.  527;  Green  v.  Garvin,  10  Cal. 

A.  330;    Sanders  v.  Noble,  22  Mont.  110;    Street  v.  Delta 
Co.,   42  Mont.   371. 

2.  Fox  v.  Myers,  29  Nev.  169. 

3.  Thompson  v.  Lee,  8  Cal.  276. 

4.  Baker  v.  Butte  City  Co.,  28  Mont.  222. 

Under  the  federal  mining  act  it  is  not  necessary  to 
designate  in  the  location  notice  the  particular  use  or 
character  of  a  placer  claim.  It  is  sufficient  to  desig- 
nate it  as  a  placer  claim  without  any  description  as  to 
kind  or  quality.  Such  words  in  no  way  abridge  the 
right  of  the  owner,  but  should  be  treated  as  surplus- 


234  NOTICE   OF   LOCATION.  [Ch.  28 

age.      Freezer  v.   Sweeny,   8  Mont.   508;   see  McCann  v. 
McMillan,   129  Cal.  350. 

In  California  the  record  must  be  a  true  copy  of  the 
posted  notice.     C.  C.,  §  1426b-d-g-k. 

5.  Farming-ton  Co.  v.  Rhymney  Co.,  20  Utah  263;    see  Gird  v. 

Cal.  Oil  Co.,  60  Fed.  531;    Rush  v.  French,  1  Ariz.  9&. 

6.  Eilers  v.  Boatman,   111  U.  S.  356. 

7.  Reilly  v.  Berry,  2  Ariz.  272. 

8.  Phillpotts   v.    Blasdell,    8   Nev.    61;   Daggett   v.   Yreka  Co., 

149  Cal.  357. 

9.  Daggett  v.  Yreka  Co.,  ante. 

10.  Book  v.   Justice  Co.,    58   Fed.   106;     see  Willeford  v.   Bell, 

(Cal.)   49  Pac.  6;    Daggett  v.  Yreka  Co.,  ante. 

11.  Phillpotts  v.   Blasdell,   ante.     See   Rose   v.   Richmond  Co., 

17  Nev.  25. 

12.  Doe  v    Waterloo  Co.,  55  Fed.  11. 

13.  Phillpotts  v.   Blasdell,  ante. 

14.  Walton  v.  Wild  Goose  Co.,  123  Fed.  209;    Providence  Co.  v. 

Burke,  6  Ariz.  S23;  Green  v.  Garvin,  ante;  Butte  N.  Co. 
v.  Radmiiovich,  39  Mont.  157. 

15.  Webb  v.  Carlon,  148  Cal.  555. 

16.  Muldoon  v.  Brown,   21  Utah   121;    see  Morton  v.  Solambo 

Co.,  26   Cal.   527. 

17.  Upton    v.    Larkin,    7    Mont.    449;     Hansen   v.    Fletcher,    10 

Utah  266;  see  §185-10,  ante. 

18.  Gleeson  v.  Martin  White  Co.,  13  Nev.  442. 

19.  Preston  v.  Hunter,  67  Fed.   998. 

20.  Gird  v.  Cal.  Oil  Co.,  ante;  see  note  4,  ante. 

21.  Sanders  v.  Noble,  ante. 

22.  Haws  v.   Victoria  Co.,    160  U.   S.   303;    Upton  v.   Sta.   Rita 

Co.,   14  N.  M.  96;  see  Green  v.  Garvin,  ante. 

23.  Donahue  v.  Meister,  88  Cal.  121. 

24.  Gird  v.  Cal.  Oil  Co.,  ante. 

25.  Donahue  v.  Meister,  ante. 

26.  Jantzon  v.  Arizona  Co.,  3  Ariz.   6. 

§  187.  The  Amended  Notice.  An  amended  notice 
of  location  is  made  for  the  purpose  of  correcting  errors 
and  defects  in  the  original  notice  or  as  evidence  of  the 
changing  of  the  boundaries  of  the  original  location.1 

2.  INTERVENING  RIGHTS.     In  the  absence  of  inter- 
vening rights  2  it  relates  back  to  the  original  location  3 
without  loss  of  rights  not  inconsistent  with  the  amend- 
ment.4 

3.  EVIDENCE.  '  Except  as  against  intervening  rights 
an  amended  notice  serves  the  same  purpose,  in  its  ad- 
mission in  evidence,  as  that  of  the  original  notice  of 
location.5 


§  188]  THE   RE-LOCATION  NOTICE.  235 

1.  Porter  v.  Tonopah  Co.,  133  Fed.  756;  Sullivan  v.  Sharp,  33 

Colo.  346;  Bismarck  Co.  v.  No.  Sunbeam  Co.,  14  Ida.  516; 
Wilson  v.  Freeman,  29  Mont.  470. 

The  mining  act  of  California  provides  that  "If  at 
any  time  the  locator  of  any  mining  claim  heretofore  or 
hereafter  located,  or  his  assigns,  shall  apprehend  that 
his  original  location  notice  was  defective,  erroneous, 
or  that  the  requirements  of  the  law  had  not  been  com- 
plied with  before  filing;  or  in  case  the  original  notice 
was  made  prior  to  the  passage  of  this  act,  and  he 
shall  be  desirous  of  securing  the  benefit  of  this  act, 
such  locator,  or  his  assigns,  may  file  an  additional 
notice,  subject  to  the  provisions  of  this  act;  provided, 
that  such  amended  location  notice  does  not  interfere 
with  the  existing  rights  of  others  at  the1  time  of  post- 
ing and  filing  such  amended  location  notice,  and  no 
such  amended  location  notice  or  the  record  thereof, 
shall  preclude  the  claimant,  or  claimants  from  prov- 
ing any  such  title  as  he  or  they  may  have  held  under 
previous  locations."  C.  C.,  §  1426h. 

2.  Bunker  Hill  Co.  v.  Empire  State  Co.,  134  Fed.  268;  John  C. 

Teller,   26   L.  D.   484;   Morrison  v.  Regan,  8  Ida.   291. 

3.  McGinnis   v.    Egbert,    8    Colo.    41;    see   Bismark   Co.   v.   No. 

Sunbeam  Co.,  ante. 

4.  Bunker  Hill  Co.  v.  Empire  State  Co.,  ante. 

5.  Milwaukee  Co.  v.  Gordan,  37  Mont.  209;  see  Moyle  v.  Bul- 

lene,   7  Colo.  A.   308. 

§  188.  The  Re-location  Notice.  Unless  required 
by  local  statute  or  district  rule  it  is  not  necessary  to 
state  in  the  notice  the  fact  of  re-location. 

2.  VOID  NOTICE.    When  so  required  the  absence  of 
such  a  recital  renders  the  re-location  void.1 

3.  EFFECT  OF  STATEMENT.    A  statement  in  a  notice 
that  it  is  a  re-location  of  a  named  claim  is  the  equiva- 
lent of  an  admission  of  its  validity,  that  the  re-locator 
claims  a  forfeiture  or  abandonment  on  the  part  of  the 
prior  claimant  2  and  precludes  the  former  from  assert- 
ing the  contrary.3 

4.  PROOF.    It  is  not  necessary  to  prove  either  for- 
feiture or  abandonment  on  the  part  of  the  prior  claim- 
ant in  the  absence  of  an  adverse  claim  by  him.4 

1.  Omar   v.    Soper,    11    Colo.    380;    Cunningham    v.    Pirrung,    9 

Ariz.   288. 

2.  Manhattan  Co.,  2  L.  D.  698;  Cunningham  v.  Pirrung,  ante; 

Murray  v.  Osborne,   (Nev.)   Ill  Pac.  31;  Wills  v.  Blain, 
5  N.  M.   238;   Zeiger  v.  Dowdy,    (Ariz.)    114  Pac.   765. 

3.  Zerres  v.  Vanina,  150  Fed.  564. 

4.  Manhattan   Co.,   ante. 


236  NOTICE    OF   LOCATION.  [Ch.  28 

§189.  Ante-dated  Notice.  A  location  notice  which 
is  ante-dated,  with  fraudulent  intent,  is  void.1  In 
Nevada  false  dating  of  a  location  notice  is  a  felony.2 

1.  Bramlett  v.  Flick,  23  Mont.  95;    Muldoon  v.  Brown,  21  Utah 

121.  A  posted  location  notice  is  not  invalidated  by  the 
fact  that  it  is  posted  after  midnight  of  the  date  it 
bears,  no  fraud  appearing  and  the  notice  being  posted 
before  the  initiation  of  a  conflicting  claim.  Bergquist 
v.  W.  Va.  Wyo.  Co.  (Wyo.),  106  Pac.  673. 

2.  Nev.  Stats.  1907,  p.  373. 

§  190.  Where  Recorded.  The  recording  of  a 
notice  of  location  is  necessary  only  when  required  by 
local  statute  or  district  rule;1  which  usually  fixes  the 
time  and  place  therefor.2 

2.  COUNTY  RECORDER.     The  office  of  the  County 
Recorder   of  the   county  within  which  the   claim   is 
situated  is  usually  fixed  by  local  statute  as  the  place 
of  record  and  also  sometimes,  in  addition  thereto,  the 
office  of  the  proper  Mining  Recorder. 

3.  DISTRICT  RECORDER.     The  district  rules,  gener- 
ally, require  the  notice  to  be  recorded  in  the  office  of 
the  mining  district  as  well  as  in  the  office  of  the 
County  Recorder.    If  it  be  required  that  the  notice  be 
filed  with  the  Mining  Recorder  and  his  place  of  busi- 
ness is  publicly  known  it  is  essential   that  such  be 
done.3 

4.  FAILURE  TO  MAKE  RECORD.    Failure  to  make  the 
record  within  the  prescribed  time  does  not  work  a 
forfeiture  of  the  claim  unless  so  expressly  provided  4 
or  no  intervening  rights  have  accrued.5 

5.  DESCRIPTION.      The    description    given    in    the 
record  must  be  sufficient  to  apprise  others  of  the  pre- 
cise location  of  the  claim,  as,  for  example,  a  prospec- 
tor,6 or  an  officer  seeking  to  execute  process,7  or  to 
sustain  a  judgment.8 

6.  WHAT  RECORD  NEED  NOT  SHOW.     The  mining 
act  does  not  require  that  the  record  shall  show  that  the 
location  is  so  marked  that  the  boundaries  of  the  claim 
can  be  readily  traced,9 


§  190]  WHERE   RECORDED.  237 

7.  QUESTION  OF  FACT.     It  is  a  question  of  fact 
whether  or  not  it  is  so  marked.10 

8.  RECORD  AS  NOTICE.    A  recorded  notice  of  loca- 
tion gives  no  information   of   a   claim   not  actually 
located;  nor  does  even  a  notice  posted  on  the  ground, 
unless  it  appears  that  the  party  posting  it  is  proceed- 
ing with  reasonable  diligence  to  indicate,  or  is  about 
to  indicate  the  boundaries  by  marking  them.11 

9.  RECORD  NOT  NOTICE.    Record  evidence  of  a  loca- 
tion is  not  made  in  the  United  States  Land  Office  but 
in  the  local  place  of  record.    The  first  official  informa- 
tion that  office  has  of  the  location  is,  when  the  applica- 
tion for  patent  is  filed  therein.    In  agricultural  entries 
all  the  record  is  made  in  such  office.12 

10.  RECORD  AS  TITLE.     The  record  of  the  location 
of  a  mining  claim  is  not  a  title  nor  proof  of  a  title,  nor 
does  it  constitute  nor  of  itself  establish  the  possessory 
right  to  which  it  relates,13  although  in  part  the  basis 
of  the  right  to  the  location/4  and  one  of  the  steps  to 
perfect  the  same.15 

11.  EFFECT  OF  RECORD.     It  has  no  greater  effect 
than  that  given  by  the  registration  laws  of  the  State,16 
and  conclusively  proves  no  more   than   its  own  re- 
cordation  as  all  the  other  necessary  steps  of -location, 
when  contested,  must  be  established  by  proof  outside 
of  such  record.17 

12.  RECORD  AS  EVIDENCE.    When  required  under  a 
local  statute  or  district  rule  the  failure  to  record  may 
be  supplied  by  oral  proof  of  the  location  18  as  such 
law  is  directory  19  and  designed  as  a  rule  of  evidence 
only,  to  determine  the  rights  of  an  adverse  claimant 
of  the  premises  under  a  subsequent  location.20    When 
not  so  required  it  is  not  admissible  in  evidence,21  nor 
is  it  a  link  in  the  chain  of  title.22 

13.  DOES  NOT  PRECLUDE  PAROL  EVIDENCE.     The 
record  does  not  exclude  parol  proof  of  actual  posses- 


238  NOTICE   OF   LOCATION.  [Ch.  28 

sion  and  the  extent  of  that  possession  as  prima  facie 
evidence  of  title.23 

14.  WHEN  PRIMA  FACIE  EVIDENCE.     When  made 
so  by  local  statute  23a  or  when  not  objected  to  in  the 
course  of  judicial  proceedings  the  record  is  prima 
facie  evidence  of  citizenship  of  the  locator24  and  of 
all  the  law  requires  such  record  to  contain  and  which 
are  therein  sufficiently  set  forth  25  as,  for  instance, 
discovery,  that  the  reference  therein  to  a  natural  ob- 
ject or  permanent  monument  is  sufficient  to  identify 
the  claim  26  and  that  the  locator  has  fully  complied 
with  the  law  in  making  the  location.27 

15.  COLOR  OF  TITLE.     When  coupled  with  posses- 
sion it  may  be  sufficient  color  of  title.28 

1.  Haws  v.   Victoria  Co.,    160   U.   S'.   303;    Peters  v.   Tonopah 

Co.,  120  Fed.  587;  Moore  v.  Steelsmith,  1  Alaska  121; 
Anthony  v.  Jillson,  83  Gal.  296;  Deeny  v.  Min.  Creek 
Co.,  11  N.  M.  279;  So.  Cross  Co.  v.  Europa  Co.,  15  Nev. 
383;  Payton  v.  Burns,  41  Or.  430. 

2.  Meydenbauer    v.    Stevens,    78    Fed.    787;     Butler    v.    Good 

Enough  Co.,  1  Alaska  246. 

3.  Fox  v.  Myers,  29  Nev.  169. 

4.  Last  Chance  Co.  v.  Bunker  Hill  Co.,  131  Fed.  579;  Sturte- 

vant  v.  Vogel,  167  Fed.  448. 

5.  Preston   v.    Hunter,    67    Fed.    996;     Zerres   v.    Vanina,    134 

Fed.  610;  Buffalo  Zinc  Co.  v.  Crump,  70  Ark.  525;  Co- 
lumbia Co.  v.  Duchess  Co.,  13  Wyo.  244;  Slothower  v. 
Hunter,  15  Wyo.  189;  see  Kendall  v.  San  Juan  Co.,  144 
U.  S.  658. 

6.  Eilers  v.  Boatman,  111  U.  S.  356. 

7.  Darger  v.  Le  Sie*ur,  8  Utah  160. 

8.  Tracy  v.  Harmon,  17  Mont.  465. 

9.  McCann  v.  McMillan,  129  Cal.  350.     The  description  of  the 

location  as  appears  from  the  record  is  binding'  on  the 
locator  except  that  if  it  varies  from  the  markings 
actually  on  the  ground  the  latter  prevail,  although 
they  may  include  less  ground  than  called  for  by  the 
record.  Meydenbauer  v.  Stevens,  ante. 

10.  Taylor  v.  Middleton,  67  Cal.  656;  Farmington  Co.  v.  Rhym- 

ney  Co.,  20  Utah  363. 

11.  Gregory  v.  Pershbaker,   73  Cal.  109. 

12.  Caribou  Lode,  24  L.  D.  488. 

13.  Zerres  v.  Vanina,  ante;  Strepey  v.  Stark,  7  Colo.  614. 

14.  Pollard  v.  Shively,  5  Colo.  309. 

15.  Strepey  v.   Stark,   ante. 

16.  Campbell  v.  Rankin,  99  U.  S'.  261;    see  Jordan  v.  Duke,  6 

Ariz.    55. 

The  mining  act  of  California  provides  that:  "Copies 
of  the  records  of  all  instruments  required  to  be  re- 
corded by  the  provisions  of  this  act,  duly  certified 
by  the  recorder,  in  whose  custody  such  records  are, 


§  190]  WHERE  RECORDED.  239 

may  be  read  in  evidence,  under  the  same  circumstances 
and  rules  as  are  now,  or  may  be  hereafter  provided  by 
law,  for  using-  copies  of  instruments  relating  to  real 
estate,  duly  executed  or  acknowledged  or  proved  and 
recorded."  C.  C.,  §  1426q. 

17.  Mutchmor  v.   McCarty,    149    Cal.    603;    see   also   Uinta   Co. 

v.  Creede  Co.,  119  Fed.  164;  Campbell  v.  Rankin,  ante; 
Strepey  v.  Stark,  ante;  see  note  23a,  post. 

18.  Wailes  v.  Davies,  158  Fed.  667;  see  Zerres  v.  Vanina,  ante; 

Ford  v.  Campbell,  29  Nev.  578;  Slothower  v.  Hunter, 
ante. 

19.  Wailes  v.  Davies,  ante. 

20.  Sharkey    v.    Candiani,    48    Ore.    112.      Where    the    relative 

priority  of  conflicting  locations  depends,  upon  the  ex- 
act hour  of  the  day  or  filing,  fractions  of  a  day  are 
taken  into  account.  Washington  Co.  v.  O'Laughlin, 
46  Colo.  503. 

21.  Golden  Fleece  Co.  v.  Cable  Con.  Co.,  12  Nev.  312. 

22.  Daggett  v.  Yreka  Co.,  149  Cal.  357. 

23.  Campbell  v.  Rankin,  ante. 

23a.  Mont.  Stats.  1907,  p.  20;  Nevada  Stats.  1907,  p.  419. 

24.  Jantzon  v.  Arizona  Co.,   3  Ariz.  6. 

25.  O'Reilly  v.   Campbell,   116   U.   S.   418;     Jantzon   v.   Arizona 

Co.,  ante;  Strepey  v.  Stark,  ante;  see  Uinta  Co.  v. 
Creede  Co.,  ante. 

26.  Brady  v.  Husby,  21  Nev.  453;  but  see  Smith  v.  Newell,  86 

Fed.   56. 

27.  Cheesman  v.   Shreve,   40   Fed.   787;    Cheesman  v.   Hart,   42 

Fed.  98. 

28.  Protective  Mg.  Co.  v.  Forest  City  Co.,  51  Wash.  643. 


CHAPTER  XXIX. 

ANNUAL  EXPENDITURE. 

§  193.  Provisions  of  the  mining  act — district  rule. 

§194.  Place  of  performance — character  of  labor  and  improve- 
ments— personal  services — group  of  locations — labor 
upon  group — burden  of  proof. 

§195.  Sufficiency  of  performance  —  compliance  with  local 
statute  or  district  rule — payment  not  conclusive — 
payment  bears  upon  value — payment  not  essential. 

§  196.  Proof  of  performance — not  mandatory  laws — effect  of 
filing — neglect  to  file  not  fatal. 

§  197.  Non-performance — when  claim  forfeited — claim  of  for- 
feiture— adverse  possession — what  is  not  excuse  for 
non-performance. 

§  198.  Resumption  of  labor — time  for  resumption — effect  of 
resumption — what  is  not  resumption — trespass. 

§  199.  Who  may  make  expenditure — presumption. 

§  200.  Failure  to  contribute — effect  of  demand — character  of 
title — basis  of  notice — right  to  give  notice — contents 
of  notice — personal  service — publication. 

§  193.     Provisions  of  the  Mining  Act.    The  mining 
act  prescribes  the  minimum  amount  of  the  annual  ex- 


240  ANNUAL  EXPENDITURE.  [Ch.  29 

penditure  and  the  maximum  limit  of  the  time  within 
which  it  may  be  made.1  It  provides  that  at  least 
$100  worth  of  labor,  that  is,  prospecting  and  excavat- 
ing for  the  purpose  of  development  2  shall  be  done ; 
or  improvements,  that  is,  tangible,  and  reasonably 
permanent  additions  for  purpose  of  development 3 
shall  be  made  upon  or  for  each  lode  and  placer  loca- 
tion 4  at  some  time  during  each  calendar  year  5  suc- 
ceeding the  calendar  year  in  which  the  location  6  was 
made,7  until  patent,8  or  its  equivalent  is  issued.9 

2.  DISTRICT  RULE.  A  district  rule  may  properly 
increase  the  amount  of  the  expenditure  and  require 
labor  to  be  done  upon  a  claim  within  the  first  calendar 
year  of  location  under  penalty  of  forfeiture.10 

1.  Northmore  v.  Simmons,   97  Fed.  386. 

The  mining  act  of  California  provides  that:  The 
amount  of  work  done  or  improvements  made  during 
each  year  to  hold  possession  of  a  mining  claim  shall 
be  that  prescribed  by  the  laws  of  the  United  States,  to 
wit:  one  hundred  dollars  annually.  C.  C.,  §  1426  1. 

Where  the  location  is  incomplete  no  question  of 
assessment  work  is  involved.  McLemore  v.  Express 
Co.,  158  Cal.  559. 

2.  Power  v.  Sla,  24  Mont.  243. 

3.  Id.     Fredericks  v.  Klauser,  52  Or.  110;    Bishop  v.  Baisley, 

28  Or.  119. 

4.  Rev.  Stats.,  §  2324;    Carney  v.  Arizona  Co.,  65  Cal.  40. 

5.  Mills  v.  Fletcher,  100  Cal.  142. 

6.  Anderson  v.   Caughey,   3   Cal.   A.   22;  McGinnis  v.   Egbert, 

8  Colo.  41;  see  Hickey  v.  Anaconda  Co.,  33  Mont.  46. 

7.  Rev.  Stats.,  §2324;  Malone  v.  Jackson, '137  Fed.  787. 

8.  Rev.  S'tats.,   §  2324. 

9.  Benson  v.  Alta  Co.,   145  U.   S.  428;    Brown  v.  Gurney,   201 

U.    S.    184;     but   see    Swigart   v.   Walker,    49    Kan.    100; 
Murray  v.  Polglase,   23  Mont.   401. 

10.  Northmore    v.    Simmons,    ante;     but    see    Original    Co.    v. 
Winthrop,  60  Cal.  631. 

§  194.  Place  of  Performance.  The  labor  may  be 
done  upon  or  underneath  the  surface  of  the  location, 
or  be  away  therefrom.1  It  must  have  a  direct  rela- 
tion to  the  present  or  future  development  or  working 
of  the  property.2 

2.  CHARACTER  OF  LABOR  AND  IMPROVEMENTS.  The 
labor  may  be  upon  the  vein  or  lode  3  but  it  must  be 
something  more  than  taking  rock  therefrom,  from 


§  194]  PLACE    OF   PERFORMANCE.  241 

time  to  time,  and  testing  it  for  the  purpose  of  finding 
pay  ore.4  It  may  consist  of  un- water  ing  the  claim  5 
or  in  the  erection  of  a  flume  to  carry  away  water  or 
waste,  or  in  the  introduction  of  water  or  the  turning 
of  a  stream.6  The  erection  of  machinery  and  other 
works  7  or  of  a  building,  if  of  benefit  to  the  claim  8 
and  not  too  distant  therefrom,9  or  the  building  of  a 
road  10  may  be  sufficient.  Reasonable  compensation 
may  be  allowed  for  the  use  of  13-  or  for  the  sharpening 
of  tools  used,1'2  but  not  the  purchase  price  thereof.13 
The  value  of  powder,  fuse,  candles,  rails  and  timber 
actually  used,14  but  not  the  cost  of  transporting 
them,15  may  be  counted.  Reasonable  compensation 
for  the  daily  use  of  horses  employed  in  drawing  cars 
or  in  raising  ore,  etc.,  but  not  their  cost,  livery  hire, 
feed  or  shoeing,  may  be  treated  as  labor  performed.16 
Reasonable  value  of  meals  furnished  to  men  while  em- 
ployed in  "assessment  work,"  but  not  the  cost  of  table 
ware,  house  furnishings,  provisions,  or  tobacco,  may 
be  counted.17 

3.  PERSONAL  SERVICES.     The  services  of  a  watch- 
man are  sufficient,  if  necessary  to  preserve  the  exca- 
vations, the  structures  erected  to  work  the  claim  18  or 
to  preserve  personal  property  ;19   but  they  are  not  suf- 
ficient where  he  merely  lives  upon  the  claim 20  or 
warns  others  from  locating  it.21     The  services  of  a 
person  employed  in  planning  and  superintending  the 
development  of  a  claim  and  the  erection  of  a  mill  and 
machinery  may  be  deemed    part  of    the    assessment 
work,22  but  the  services  of  an  agent  or  accountant  23 
or  of  a  person  whose  time  is  spent  in  endeavoring  to 
obtain  means  for  the  development  of  property,24  will 
be  insufficient. 

4.  GROUP  OF  LOCATIONS.     Any  number  of  contig- 
uous locations  held  in  common  may  form  a  group  ex- 
cept in  case  of  oil  placer  locations.    These,  by  law,  are 
limited  to  groups  of  five.25 


242  ANNUAL,   EXPENDITURE.  [Ch.  29 

5.  LABOR  UPON  GROUP.    Labor  may  be  done  or  im- 
provements made  upon  or  at  a  distance  from  any  one 
of  the  locations  comprising  the  group  when  of  benefit 
and  value  to  the  entire  group.26 

The  expenditure  must  equal,  in  the  aggregate,  the 
amount  required  on  all  the  locations.27  It  must  be  a 
part  of  a  general  plan  having  in  view  the  development 
of  the  group  28  as  labor  upon  or  for  a  location  therein 
which  has  no  reference  to  the  development  of  all  the 
locations  will  not  be  sufficient.29  While  a  court  should 
not  substitute  its  judgment  for  that  of  the  locator 
as  to  the  wisdom  and  expediency  of  the  "plan"  30  yet 
it  remains  a  question  of  fact  whether  the  requirement 
of  the  law  has  been  fulfilled.31  By  adopting  a  gen- 
eral scheme  for  the  group  instead  of  making  the  ex- 
penditure upon  each  separate  location  there  is  the 
risk  of  an  adverse  legal  determination  of  the  ques- 
tion,32 a  hazard  which  a  mortgagee  may  insist  shall 
not  be  taken.33 

6.  BURDEN  OF  PROOF.     The  burden  of  proof  as  to 
the  sufficiency  of  the  expenditure  under  the  general 
plan  to  hold  all  the  locations  within  the  group  rests 
with  the  claimant  thereunder.34    The  natural  and  rea- 
sonable presumption  is  that  all  the  work  is  done  as 
part  of  the  system,  and  as  such  applicable  to  all  the 
locations.35     But  it  must  tend  either  to  enhance  the 
value  of  the  claim  in  dollars  and  cents,  or  that  which 
is  of  use  in  prospecting,  developing  or  operating  the 
property.36 

1.  Mt.  Diablo  Co.  v.  Callison,  17  Fed.  Cas.  9886. 

2.  Jackson  v.  Roby,  109  U.  S.  440;  Yreka  Co.  v.  Knight,  133 

Cal.  544;    Fissure  Co.  v.'  Old  SUsan  Co.,  22  Utah  438. 

3.  Lockhart  v.  Rollins,  2  Ida.   (Hasb.)  540. 

4.  Bishop  v.  Baisley,  28  Or.  119. 

5.  Honaker  v.   Martin,   11  Mont.   91;   but  see   Evalina  Co.   v. 

Yosemite  Co.,   (Cal.  A.)   115  Pac.  947. 

6.  Jackson   Co.   v.   Roby,  ante.      See  Anvil   Co.   v.   Code,    182 

Fed.  205. 

7.  Lockhart  v.  Rollins,  ante;  but  see  Big  3  Co.  v.  Hamilton, 

157  Cal.  130. 

8.  Bryan  v.  McCraig,  10  Colo.  309. 


§  194]          PLACE  OF  PERFORMANCE.  243 

9.  Remington  v.  Baudit,   6  Mont.   138. 

10.  Doherty  v.  Morris,  17  Colo.  105.     See  Pierce's  Wash.  Code 

§6453. 

11.  Fredericks  v.  Klauser,  52  Or.  110. 

12.  Hirschler  v.  McKendricks,   16  Mont.  211. 

13.  Fredericks  v.  Klauser,  ante. 

14.  Id. 

15.  Id.;    but  see  Whalen  Co.  v.  Whalen,  127  Fed.  611. 

16.  Fredericks  v.  Klauser.   ante. 

17.  Id. 

18.  Altoona   Co.    v.    Integral   Co.,    114   Cal.    100;    Danaldson   v. 

Orchard  Co.,  6  Cal.  A.  641;  Lockhart  v.  Rollins,  ante; 
see  Hough  v.  Hunt,  138  Cal.  142;  Fredericks  v.  Klau- 
ser, ante. 

19.  Kinsley    v.    New    Vulture    Co.,    11    Ariz.    66;     Ingersol    v. 

Scott    (Ariz.),   108   Pac.   460. 

20.  Hough  v.  Hunt,  ante. 

21.  Altoona  Co.    v.   Integral   Co.,   ante;   Whiting  v.    Straup,   17 

Wyo.  1. 

22.  Rara  Avis  Co.  v.  Bouscher,  9  Colo.  385. 

23.  Id.;    but  see  Whalen  Co.  v.  Whalen,  ante. 

24.  Du  Prat  v.  James,  65  Cal.  555;    McLemore  v.  Express  Co., 

158  Cal.  559. 

25.  32  Stats.  825;    see  Gird  v.  Cal.  Oil  Co.,  60  Fed.  531. 

26.  Chambers   v.   Harrington,   111   U.   S.    350;     Book  v.   Justice 

Co.,  58  Fed.  106;  Anvil  Co.  v.  Code,  ante;  Mt.  Diablo 
Co.  v.  Callison,  ante:  Elmer  F.  Cassel,  32  L.  D.  85; 
Wood  Placer  Co.,  32  L.  D.  401;  Fredericks  v.  Klauser, 
ante;  Hawgood  v.  Emery,  22  S.  Dak.  573;  see  Aldebaran 
Co.,  36  L.  D.  551. 

It  .would  be  absurd  to  require  a  shaft  to  be  sunk  on 
each  location  in  a  consolidated  claim  when  one  shaft 
would  suffice  for  all  the  locations.  S't.  Louis  Co.  v. 
Kemp,  104  U.  S.  636;  Copper  Mt.  Co.  v.  Butte  &  Corbin 
Co.,  39  Mont.  487;  Sexton  v.  Wash.  Co.,  55  Wash.  380. 
See  Big  3  Co.  v.  Hamilton,  ante.  But  if  the  claims  are 
not  contiguous  the  work  is  insufficient.  Anvil  Co.  v. 
Code,  182  Fed.  205;  see  Morgan  v.  Myers,  post. 

27.  St.    Louis    Co.    v.    Kemp,    ante;    Chambers    v.    Harrington, 

ante;  Mt.  Diablo  Co.  v.  Callison,  ante;  Book  v.  Justice 
Co.,  ante;  Gird  v.  Cal.  Oil  Co.,  ante;  Justice  Co.  v.  Bar- 
clay, 82  Fed.  554;  Elmer  F.  Cassel,  ante;  Wood  Placer 
Co.,  ante;  James  Caretto,  35  L.  D.  361;  Power  v.  Sla,  24 
Mont.  243. 

28.  Jackson  v.  Roby,   ante;  Highland  Marie  Claims,  31  L.  D. 

37;  Elmer  F.  Cassel,  ante;  Wood  Co.,  ante;  Copper 
Mt.  Co.  v.  Butte  &  Corbin  Co.,  ante. 

29.  Jackson   v.   Roby,   ante. 

Where  several  contiguous  mining  claims  constitute  a 
group  and  expenditures  are  made  upon  an  improve- 
ment which  is  intended  to  aid  in  the  development  of 
all  so  held,  the  improvement  constitutes  a  distinct  en- 
tity, not  subject  to  physical  subdivision  or  apportion- 
ment, in  its  application  to  the  claims  intended  to  be 
benefited  by  it.  The  work  performed  attaches  to  the 
claims  collectively  and  not  severally.  Duncan  v.  Eagle 
Rock  Co.,  48  Colo.  569;  see  Jas.  Carretto,  ante. 

30.  Mann    v.    Budlong,    129    Cal.    577;     Wright   v.    Killian,    132 

Cal.  56;  Gear  v.  Ford,  4  Cal.  A.  556;  see  Copper  Mt. 
Co.  v.  Butte  &  Corbin  Co.,  ante. 


244  ANNUAL  EXPENDITURE.  [Ch.  29 

31.  Copper  Co.   v.   Butte   &   Corbin   Co.,   ante;     see  Wailes   v. 

Davies,   158   Fed.   667. 

32.  Anvil  Co.  v.  Code,  ante;  Big  3  Co.  v.  Hamilton,  ante;  Cop- 

per Co.  v.  Butte  &  Corbin  Co.,  ante. 

33.  Copper  Belle  Co.  v.   Costello,   11  Ariz.  334. 

34.  Whalen  Co.  v.  Whalen,  ante;  see  Wailes  v.  Davies,  ante; 

Yreka  Co.  v.  Knight,  ante. 

35.  Mt.  Diablo  Co.  v.  Callison,   ante.     In  contested  cases  con- 

cerning assessment  work  upon  a  group  of  locations 
the  best  evidence  of  the  existence  of  the  group  is  the 
situs  of  the  properties  and  the  kind,  quality  and  place 
of  the  work  performed.  The  fact  that  the  location 
notice  recites  that  the  locations  are  "together  and 
touching''  is  not  conclusive.  Evidence  of  the  claim- 
ant's intention  to  hold  them  as  a  group  is  inadmissible. 
Testimony  as  to  the  topography  of  the  region,  that 
unclaimed  and  unoccupied  ground  lies  between  some 
of  the  locations  or  that  they  are  separated  by  a  ravine 
is  germane  to  the  issue.  Morgan  v.  Myers,  (Cal.)  113 
Pac.  153. 

36.  Anvil  Co.  v.  Code,  ante. 

§  195.  Sufficiency  of  Performance.  The  test  of 
the  sufficiency  of  the  expenditure  is  the  reasonable 
value;  not  what  is  paid  nor  the  contract  price,  but 
whether  the  expenditure  tends  to  facilitate  the  devel- 
opment or  actually  promotes  or  directly  tends  to  pro- 
mote the  extraction  of  mineral  from  or  improve  the 
property  or  be  necessary  for  its  care  or  the  protection 
of  the  mining  works  thereon  or  pertaining  thereto.1 

2.  COMPLIANCE  WITH  LOCAL  STATUTE  OR  DISTRICT 
RULE.     A  compliance  with  the  provision  of  a  local 
statute  or  district  rule  to  the  effect  that  a  certain  num- 
ber of  days'  work  at  a  certain  sum  a  day,  or  that 
work  of  a  certain  character  or  extent  shall  constitute 
the  requisite  expenditure  may  be  insufficient  to  meet 
the  requirements  of  the  mining  act.2 

3.  PAYMENT  NOT  CONCLUSIVE.     Payment    is    not 
conclusive  proof  of  performance.3     It  may  be  an  evi- 
dence of  good  faith4  but  not  that  the  labor  .done  or 
improvements  made  were  worth  the  amount  paid.5 

4.  PAYMENT  BEARS  UPON  VALUE.     Payment  bears 
upon  the  value  6  which  may  be  insufficient  although 
equal  to  the  amount  required  by  law,7 


§  196]         PROOF  OF  PERFORMANCE.  245 

5.  PAYMENT  NOT  ESSENTIAL.  Labor  actually  done 
or  improvements  made  may  be  sufficient  to  hold  the 
claim  although  not  in  fact  paid  for;  but  payment 
made  for  work  not  done  will  not  suffice.8 

See  §  199,  post. 

1.  Jackson  v.  Roby,  109  U.   S.  440;  McCulloch  v.  Murphy,   125 

Fed.    147;    McKay   v.   Neussler,    148    Fed.    86;     Highland 
Marie,  31  L.  D.  37;  Elmer  F.  Cassel,  32  L.  D.  85. 

Work  done  for  the  purpose  of  discovering  mineral, 
whatever  the  particular  form  or  character  of  the  de- 
posit which  is  the  subject  of  search,  is  within  the 
spirit  of  the  statute.  U.  S.  v.  Iron  Co.,  24  Fed.  568;  see 
Bishop  v.  Baisley,  28  Or.  119.  Work  done  upon  the 
surface  may  be  insufficient.  Mills  v.  Fletcher,  100  Cal. 
142. 

2.  Woody   v.    Bernard,    69    Ark.    579;    Wright   v.    Killian,    132 

Cal.   56. 

The  test  is  not  as  to  the  number  of  days'  work 
done,  but  what  is  the  worth  or  reasonable  value  of 
the  labor  done  or  improvements  made.  These  are  to 
be  measured  in  dollars,  not  in  days.  If,  when  com- 
pleted, the  labor  or  improvements  are  reasonably 
worth  the  required  sum,  the  requirement  of  the  law 
has  been  fulfilled.  Penn  v.  Oldhauber,  24  Mont.  287. 

3.  McCulloch  v.  Murphy,  ante. 

4.  McCulloch   v.   Murphy,   ante;    Whalen   Co.   v.   Whalen,   127 

Fed.  611;    Anderson  v.  Caughey,  3  Cal.  A.   22;    Penn  v. 
Oldhauber,  ante;  Wagner  v.  Dorris,  43  Or.  392. 

5.  Id. 

6.  McCormick  v.  Parriott,  33  Colo.  382. 

7.  Mills  v.  Fletcher,  ante. 

8.  Big  3  Co.  v.  Hamilton,  157  Cal.  130;    Coleman  v.  Curtis,  12 

Mont.   301;  Protective  Co.  v.  Forest  City  Co.,  51  Wash. 
643. 

§  196.  Proof  of  Performance.  The  various  local 
statutes  provide  for  the  making,  recording  and  legal 
effect  of  affidavits  of  annual  expenditure.1 

2.  NOT  MANDATORY  LAWS.    Such  laws  are  not  man- 
datory.2 

3.  EFFECT  OF  FILING.     If  the    affidavit    be    filed 
within  the  statutory  period  3  it  presents  prima  facie 
evidence  of  the  facts  properly  therein  stated  4  but  it 
does  not  prevent  other  proof  by  the  claimant  nor  at- 
tack by  his  adversary.5     Its  due  filing  may  prevent 
re-location.6 

4.  NEGLECT  TO  FILE  NOT  FATAL.    Neither  the  fail- 
ure to  record  the  affidavit  nor  a  mistake  therein  will 
work  a  forfeiture  of  the  claim.7 


246  ANNUAL,  EXPENDITURE.  [Ch.  29 

1.  See  Book  v.  Justice  Co.,  58  Fed.  106;    McGinnis  v.  Egbert,  8 

Colo.  41;  Coleman  v.  Curtis,  12  Mont.  301;  Davidson  v. 
Bordeaux,  15  Mont.  245. 

The  Californian  mining  act  provides  that  "Whenever 
mine  owner,  company  or  corporation  shall  have  per- 
formed the  labor  and  made  the  improvements  required 
by  law  upon  any  mining  claim,  the  person  in  whose 
behalf  such  labor  was  performed  or  improvements 
made,  or  some  one  in  his  behalf,  shall  within  30  days 
after  the  time  limited  for  performing  such  labor  or 
making  such  improvements  make  and  have  recorded 
by  the  county  recorder,  in  books  kept  for  that  purpose 
in  the  county  in  which  such  mining  claim  is  situated, 
an  affidavit  setting  forth  the  value  of  labor  or  im- 
provements made,  the  name  of  the  claim,  and  the 
name  of  the  owner  or  claimant  of  said  claim  at  whose 
expense  the  same  was  made  or  performed.  Such  affi- 
davit, or  a  copy  thereof,  duly  certified  by  the  county 
recorder,  shall  be  prima  facie  evidence  of  the  perform- 
ance of  such  labor  or  the  making  of  such  improve- 
ments, or  both."  C.  C.,  §  1426m. 

2.  Davidson   v.    Bordeaux,   ante;     see   Harris   v.   Kellogg,    117 

Cal.   484. 

3.  McGinnis  v.  Egbert,  ante. 

4.  Book  v.  Justice  Co.,  ante;  Big  3  Co.  v.  Hamilton,  157  Cal. 

130.  In  Idaho  the  failure  to  file  such  affidavit  is  con- 
sidered prima  facie  evidence  of  abandonment.  Ida. 
C.  C.  §  3211. 

5.  Book  v.  Justice  Co.,  ante;    Whalen  Co.  v.  Whalen,  127  Fed. 

611.  In  contested  cases  there  is  often  a  wide  diverg- 
ence in  the  testimony  of  the  opposing  parties  as  to  the 
actual  or  reasonable  value  of  the  work  done  or  im- 
provements made.  McCulloch  v.  Murphy,  125  Fed.  147. 

6.  McCulloch  v.  Murphy,  ante. 

7.  Id.;    Bismarck  Co.  v.  No.  Sunbeam  Co.,  14  Ida.  561;    Murray 

Hill  Co.  v.  Havener,  24  Utah,  73;  but  see  Harris  v.  Kel- 
logg, ante. 

§  197.  Non-performance.  Failure  to  make  the  re- 
quired annual  expenditure  does  not  of  itself  operate 
as  a  forfeiture  of  the  claim.  It  only  permits  a  re- 
location.1 The  law  does  not  provide  for  a  forfeiture 
merely  because  of  such  default.2 

2.  WHEN  CLAIM  FORFEITED.     The  location  is  for- 
feited only  when  the  adverse  rights  of  third  parties 
attach  thereto.3 

3.  CLAIM  OF  FORFEITURE.    He  who  asserts  the  for- 
feiture must  prove  it  4  by  clear  and  convincing  testi- 
mony.5 

4.  ADVERSE  POSSESSION.     Forcible    or    clandestine 
adverse  possession  6  or  threats  in  the  face  of  a  bona 


§198]  RESUMPTION   OF    LABOR.  247 

fide  attempt  to  do  the  work  7  are  not  sufficient  to  de- 
feat the  right  of  the  locator.  But  his  claim  to  the 
property  will  be  lost  if  not  sustained  by  an  action  in 
ejectment  brought  within  the  period  allowed  by  the 
statute  of  limitations.8 

5.  WHAT  Is  NOT  EXCUSE  FOE  NON-PERFORMANCE. 
The  mere  pendency  of  patent  proceedings  before  pay- 
ment for  the  land,9  the  obtaining  of  the  receiver's  re- 
ceipt therein  through  fraud,10  the  pendency  of  court 
proceedings,11  or  the  rendition  of  a  judgment  there- 
in 12  are  not  sufficient  grounds  for  non-performance. 

1.  Bingham  Co.  v.  Ute  Co.,  181  Fed.  748;    Madison  v.  Octave 

Oil  Co.,  154  Cal.  768;    Beals  v.  Cone,  27  Colo.  473. 

2.  Knutson  v.  Fredlund,   56  Wash.  634. 

The  word  "lapsed"  is  unknown  to  mining  usage  or 
laws  and  is  not  equivalent  to  the  term  "forfeited,"  nor 
does  it  mean  a  technical  forfeiture.  Contreras  v. 
Merck,  131  Cal.  211. 

3.  Lockhart   v.   Johnson,    181   U.    S.    516;    Field   v.    Tanner,    32 

Colo.  278;  see  §73,  ante. 

4.  Hammer  v.  Garfield  Co.,  130  U.  S.  291;  McCulloch  v.  Mur- 

phy, 125  Fed.  147;  Harris  v.  Kellogg,  117  Cal.  484;  Cal- 
laghan  v.  James,  141  Cal.  291;  Little  Dorrit  Co.  v. 
Arapahoe  Co.,  30  Colo.  431;  Sherlock  v.  Leighton,  9 
Wyo.  297.  An  agricultural  claimant  can  not  raise  the 
point.  Coleman  v.  McKenzie,  29  L.  D.  359. 

5.  Hammer  v.  Garfield  Co.,  ante;  Walton  v.  Wild  Goose  Co., 

123  Fed.  209;  Whalen  Co.  v.  Whalen,  127  Fed.  611; 
Zerres  v.  Vanina,  134  Fed.  610;  Wailes  v.  Davies,  158 
Fed.  667;  Goldberg  v.  Bruschi,  146  Cal.  708;  Power  v. 
Sla,  24  Mont.  243;  Crown  Point  Co.  v.  Crismon,  39  Or. 
346. 

6.  Mills   v.   Fletcher,   100   Cal.    142;     Trevaskis   v.   Peard,    111 

Cal.   599;  Utah  Co.  v.  Dickert,  6  Utah,   183. 

An  adverse  locator  cannot  complain  that  the  assess- 
ment work  was  not  done  by  the  original  locator  while 
he  was  in  adverse  possession.  Madison  v.  Octave  Oil 
Co.,  ante. 

7.  Slavonian   Co.   v.   Perasich,   7   Fed.   331;    Garvey   v.   Elder, 

21  S.  Dak.  77. 

8.  Trevaskis  v.  Peard,  ante. 

9.  Gillis  v.  Downey,  85  Fed.  483;    Ferguson  v.  Belvoir  Co.,  14 

L.  D.  43;    Cain  v.  Addenda,  29  L.  D.  62. 

10.  Murray  v.  Polglase,  23  Mont.  401. 

11.  Clark  v.  American  Co.,  7  C.  L.  O.  708. 

12.  Leadville  office,  Min.  Law  Dig.  96. 

§  198.  Resumption  of  Labor.  To  "resume  work" 
is  to  begin  work  in  good  faith  and  diligently  prosecute 


248  ANNUAL  EXPENDITURE.  [Ch.  29 

the  same  to  completion  before  re-location,1  or  after- 
wards, if  it  can  be  done  peaceably.2 

2.  TIME  FOR  RESUMPTION.    Work  may  be  resumed 
at  any  time  before  all  the  acts  requisite  to  a  valid  ad- 
verse re-location  have  been  performed.3 

3.  EFFECT  OF  RESUMPTION.    After  a  valid  resump- 
tion the  rights  of  the  claimant  are  precisely  what  they 
were  before  default.4 

4.  WHAT  is  NOT  A  RESUMPTION.    Work  is  not  "re- 
sumed" by  the  mere   purchase  of  material  nor  the 
mere  bringing  of  the  same  upon  the  claim.5 

5.  TRESPASS.    An  attempted  adverse  re-location  of 
a  mining  claim  during  a  temporary  suspension  of  such 
work  over  Sunday  is  a  trespass  and  no  rights  are  ini- 
tiated thereby.6 

See  §  195,  ante. 

1.  McCormick  v.  Baldwin,  104  Cal.  227;    Hirschler  v.  McKen- 

dricks,  16  Mont.  211. 

2.  Oscamp  v.  Crystal  River  Co.,  58  Fed.  295;    Preston  v.  Hun- 

ter, 67  Fed.  996. 

3.  Justice  Co.  v.  Barclay,   82  Fed.  554;    Du  Prat  v.  James,  65 

Cal.  555;  McKay  v.  McDougall,  25  Mont.  258;  Thornton 
v.  Kaufman,  40  Mont.  282;  Klopenstine  v.  Hays,  20 
Utah,  45;  see  Ingersol  v.  Scott  (Ariz.),  108  Pac.  460. 

4.  Belk  v.  Meagher,  104  U.  S.  279. 

5.  Honaker  v.  Martin,  11  Mont.  91;    Fredericks  v.  Klauser,  52 

Or.   110. 

6.  Fee  v.  Durham,  121  Fed.  468. 

§  199.  Who  May  Make  Expenditure.  The  annual 
expenditure  may  be  made  by  the  locator,  his  heirs, 
assigns  or  legal  representatives  x  or  by  some  one  in 
privity  therewith  2  or  by  one  who  has  an  equitable  or 
beneficial  interest.3  A  stockholder  in  a  corporation 
claiming  the  property,4  or  a  receiver  appointed  by  a 
court  5  are  within  the  rule. 

It  is  sufficient  if  the  labor  is  gratuitously  contrib- 
uted,6 but  labor  done  or  improvements  made  by  a  tres- 
passer or  a  stranger  to  the  title  will  not  inure  to  the 
benefit  of  the  claimant.7 

2.  PRESUMPTION.  In  the  absence  of  proof  to  the 
contrary  it  will  be  presumed  that  the  labor  or  im- 


§200]  FAILURE   TO   CONTRIBUTE.  249 

provements  made  upon  the  claim  were  at  the  expense 
of  its  claimant.8 

1.  Rev.  Stats.,  §  2324. 

2.  Jupiter  Co.  v.  Bodie  Con.  Co.,   11  Fed.   666:    Book  v.  Jus- 

tice Co.,  58  Fed.  106;  see  Nesbitt  v.  Delamar  Co.,  24 
Nev.  283. 

3.  Jupiter  Co.  v.  Bodie  Con.  Co.,  ante;    Book  v.  Justice  Co., 

ante;  Anderson  v.  Caughey,  3  Cal.  A.  22;  Dye  v.  Crary, 
13  N.  M.  439.  As  to  one  holding  under  color  of  title, 
see  Dolles  v.  Hamberg  Co.,  23  L.  D.  267. 

4.  Wailes  v.  Davies,  158  Fed.  667;    Repeater  Claims,  35  L.  D. 

54.  For  work  done  by  a  superintendent  see  Godfrey  v. 
Faust,  18  S.  Dak.  567. 

5.  Whalen  Co.  v.  Whalen,  127  Fed.  611. 

6.  Anderson  v.  Caughey,   ante. 

7.  Nesbitt  v.  Delamar  Co.,  ante. 

8.  Yarwood  v.  Johnson,   29  Wash.   643. 

§  200.  Failure  to  Contribute.  At  the  expiration 
of  the  calendar  year  the  co-owners  who  have  per- 
formed the  work  may  demand  contribution  in  writing 
or  by  publication  from  the  co-owner  who  may  have 
failed  to  pay  or  perform  his  share  thereof  .* 

2.  EFFECT  OF  DEMAND.     Upon  the  failure  of  the 
defaulting  co-owner  to  meet  the  demand  thus  made 
upon  him,  within  the  time  fixed  by  statute,  his  inter- 
est in  the  claim  becomes  the  property  of  the  co-owners 
who  have  given  such  notice.2 

3.  CHARACTER  OF  TITLE.    The  title  accruing  under 
these  proceedings  is  much  like  that  conveyed    by  a 
sheriff's    deed   after   judgment    and    execution    sale. 
Each  results  from  a  default  in  obligation  followed  by 
proceedings    authorized    by    law.3     When    rightfully 
given  the  notice  is  effective  in  cutting  off  all  parties 
and  the  title  thus  kept  free  and  clear  from  uncertainty 
and  doubt.4 

4.  BASIS  OF  NOTICE.    The  question  of  the  perform- 
ance of  assessment  work  is  one  of  fact.5    If  the  work 
was  not  actually  done  or  the  improvements  were  not 
actually  made  the  proceedings  have  no  more  effect  or 
force  than  a  forged  deed.6    Hence,  if  the  alleged  de- 
fault does  not  exist  in  fact  the  notice  is  ineffective.7 


250  ANNUAL,   EXPENDITURE.  [Ch.  29 

5.  RIGHT  TO  GIVE  NOTICE.     The  right  to  give  the 
notice  is  limited  to  a  co-owner  who  has  performed  the 
labor  8  and  does  not  extend  to  a  person  having  an  in- 
choate title  9  nor  to  a  stockholder  of  a  corporation,  as 
such.10 

6.  CONTENTS  OF  NOTICE.    The  notice  should  be  ad- 
dressed to  the  co-owner  by  name.    If  he  be  dead  then 
to  his  heirs,  not  necessarily  naming  them,  and  to  his 
administrator,  although  the  latter  may  not  have  then 
been  appointed.    It  should  be  addressed  "to  all  whom 
it  may  concern." 1:L   It  should  state  the  descriptive  name 
of  the  claim;    the  place  of  record;    the  amount  ex- 
pended upon  each  claim  and  each  year  for  which  the 
expenditure  is  claimed.12 

7.  PERSONAL  SERVICE.     Personal  service  cannot  be 
had  by  sending  through  the  mail  a  copy  of  the  news- 
paper in  which  the  notice  is  published  and  proving 
that  the  person  to  whom  the  notice  is  directed  received 
such  newspaper.13 

8.  PUBLICATION.    The  publication  must  be  made  in 
the  newspaper  published  nearest  the  claim.14    If  not, 
the  reason  therefor  must  be  stated.15 

1.  Elder  v.   Horseshoe   Co.,   194  U.   S.   248.     This  provision  of 

the  law  is  constitutional.  Van  Sice  v.  Ibex  Co.,  173 
Fed.  609.  As  a  general  rule  the  remedy  so  provided  is 
exclusive.  McDaniel  v.  Moore,  (Ida.)  112  Pac.  317. 

2.  Rev.  Stats.,  §2324;   see  Faubel  v.  McFarland,   144  Cal.  717. 

The  mining  act  of  California  provides  that:  "When- 
ever a  co-owner  or  co-owners  of  a  mining  claim  shall 
give  to  a  delinquent  co-owner  or  co-owners  the  notice 
in  writing  or  notice  by  publication  provided  for  in 
section  2324,  Revised  Statutes  of  the  United  States, 
an  affidavit  of  the  person  giving  such  notice,  stating 
the  time,  place,  manner  of  service,  and  by  whom  and 
upon  whom  such  service  was  made  shall  be  attached 
to  a  true  copy  of  such  notice,  and  such  notice  and  affi- 
davit must  be  recorded  in  the  office  of  the  county  re- 
corder, in  books  kept  for  that  purpose,  in  the  county 
in  which  the  claim  is  situated,  within  ninety  days,  after 
the  giving  of  such  notice;  for  the  recording  of  which 
,  said  recorder  shall  receive  the  same  fees  as  are  now 
allowed  by  law  for  recording  deeds;  or  if  such  notice 
is  given  by  publication  in  a  newspaper,  there  shall  be 
attached  to  a  printed  copy  of  such  notice  an  affidavit 
of  the  printer  or  his  foreman,  or  principal  clerk  of 
such  paper,  stating  the  date  of  the  first,  last  and  each 


5200]  FAILURE   TO   CONTRIBUTE.  251 

insertion  of  such  notice  therein,  and  where  the  news- 
paper was  published  during:  that  time,  and  the  name 
of  such  newspaper.  Such  affidavit  and  notice  shall  be 
recorded  as  aforesaid,  within  one  hundred  and  eighty 
days  after  the  first  publication  thereof.  The  original 
of  such  notice  and  affidavit,  or  a  duly  certified  copy 
of  the  record  thereof,  shall  be  prima  facie  evidence 
that  the  delinquent  mentioned  in  section  2324  has 
failed  or  refused  to  contribute  his  proportion  of  the 
expenditure  required  by  that  section,  and  of  the 
service  of  (by)  publication  of  said  notice;  provided, 
the  writing  or  affidavit  hereinafter  provided  for  is 
not  of  record.  If  such  delinquent  shall,  within  the 
ninety  days  required  by  section  2324,  aforesaid,  con- 
tribute to  his  co-owner  or  co-owners,  '  his  propor- 
tion of  such  expenditures,  and  also  all  costs  of 
service  of  the  notice  required  by  this  section,  whether 
incurred  for  publication  charges  or  otherwise,  such 
co-owner  or  co-owners  shall  sign  and  deliver  to 
the  delinquent  or  delinquents  a  writing,  stating  that 
the  delinquent  or  delinquents  by  name  has  within  the 
time  required  by  section  2324  aforesaid,  contributed 

his  share  for  the  year  ,  upon  the  mine,  and 

further  stating  therein  the  district,  county  and  state 
wherein  the  same  is  situated,  and  the  book  and  page 
where  the  location  notice  is  recorded,  if  said  mine 
was  located  under  the  provisions  of  this  act;  such 
writing  shall  be  recorded  in  the  office  of  the  county 
recorder  of  said  county,  for  which  he  shall  receive  the 
same  fees  as  are  now  allowed  by  law  for  recording 
deeds.  If  such  co-owner  or  co-owners  shall  fail  to 
sign  and  deliver  such  writing  to  the  delinquent  or  de- 
linquents within  twenty  days  after  such  contribution, 
the  co-owner  or  co-owners  so  failing  as  aforesaid, 
shall  be  liable  to  the  penalty  of  $100,  to  be  recovered 
by  any  person  for  the  use  of  the  delinquent  or  delin- 
quents in  any  court  of  competent  jurisdiction.  If  such 
co-owner  or  co-owners  fail  to  deliver  such  writing 
within  said  twenty  days,  the  delinquent,  with  two  dis- 
interested persons  having  personal  knowledge  of  such 
contribution,  may  make  affidavit  setting  forth  in  what 
manner,  the  amount  of,  to  whom,  and  upon  what  mine, 
such  contribution  was  made.  Such  affidavit,  or  a 
record  thereof,  in  the  office  of  the  county  recorder,  of 
the  county  in  which  such  mine  is  situated,  shall  be 
prima  facie  evidence  of  such  contribution."  C.  C., 
§  1426o. 

3.  Van  Sice  v.  Ibex  Co.,  ante. 

4.  Id.     Elder  v.  Horseshoe  Co.,  ante. 

5.  Knickerbocker  v.  Halla,  162  Fed.  318. 

6.  Delmoe  v.  Long,   35  Mont.   139. 

7.  Crary  v.  Dye,   208  U.  S.   515;  Golden  and  Cord  Claims,   31 

L.  D.  178;    Delmoe  v.  Long,  ante. 

A  co-owner  cannot  make  the  annual  expenditure 
upon  claims  adjacent  to  the  common  property  and  in 
the  absence  of  an  agreement  with  the  remaining  co- 
owners  hold  them  liable  for  contribution..  Hawgood 
v.  Emery,  22  S.  Dak.  573. 

8.  Turner  v.   Sawyer,    150   U.   S.   578;    Van   Sice  v.   Ibex   Co., 

ante. 


252  ANNUAL  EXPENDITURE.  [Ch.  29 

9.   Id.     Repeater  Claims,  35  L.  D.   54. 

10.  Id. 

11.  Elder  v.  Horseshoe  Co.,  ante;  Badger  v.  Stockton  Co.,  139 

Fed.   838;   Ballard  v.   Gollob,   34  Colo.   417;   see   Evalina 
Co.  v.  Yosemite  Co.,   (Cal.  A.)   115  Pac.  947. 

12.  .Elder  v.  Horseshoe  Co.,  ante;  Haynes  v.  Briscoe,  29  Colo. 

137. 

13.  Haynes  v.  Briscoe,   ante. 

14.  Rev.   Stats.,  §  2324.      The  phrase   "in   the   newspaper  pub- 

lished  nearest   to   the   claim"    means   the   nearest   in   a 
direct  line.     Haynes  v.  Briscoe,  ante. 

15.  Elder  v.  Horseshoe  Co.,  ante;    Van  Sice  v.  Ibex  Co.,  ante. 


CHAPTER  XXX. 

PATENTS. 

§  206.  In    general — mining    rights — agricultural    patent — lode 

patent — placer     patent — equivalent      to      patent — void 

patents — voidable  patents. 
§  207.  Legal      title — equitable      title — superiority      of      title — 

priority  of  title — evidence — facts   settled  by  patent — 

presumptions. 
§  208.  State  legislation. 

§  206.  In  General.  A  patent  is  the  deed  of  the 
government.1  It  is  not  a  distinct  grant,  but  is  the 
consummation  of  a  grant  which  had  its  inception  in 
the  location  of  the  claim  patented.2  It  carries  with  it 
the  rights  conferred  by  law.  These  cannot  be  enlarged 
nor  diminished  by  reservation  of  the  land  department 
depending  upon  their  fitness  on  its  judgment.3  It 
affects  no  lien  subsisting  upon  the  property  at  the 
time  of  its  issuance.4  There  is  no  restriction  as  to  the 
time  when  it  shall  be  applied  for  5  nor  as  to  the  use  6 
or  sale  7  of  the  patented  property. 

2.  MINING  RIGHTS.    It  is  not  essential  to  the  enjoy- 
ment of  a  mining  claim.8     It  confers  no  greater  min- 
ing rights  than  those  obtained  by  a  valid  location.9 
It  adds  but  little  to  the  security  of  a  party  in  con- 
tinuous possession.10 

3.  AGRICULTURAL  PATENT.    An  "agricultural"  pat- 
ent conveys  the  surface  of  the  ground  embraced  there- 
in and  all  that  lies  beneath  it.11    A   mineral    patent 
does  not  necessarily  do  so.lla 


§  206]  PATENTS.  253 

4.  LODE  PATENT.     A  lode  patent  conveys  the  ex- 
elusive    right    to    the    surface    within    the    patented 
ground;    all  veins,  lodes  and  ledges  having  their  top 
or  apex  therein  together  with  the  right  to  follow  the 
same  upon  their  dip  into  adjoining  territory.12     It 
does  not  convey  the  veins,  lodes  and  ledges  which  may 
apex  outside  the  boundaries  of  the  patented  area  and 
which  extend  thereunder.13 

5.  PLACER  PATENT.     A  placer  patent  conveys   a 
qualified  right  to  the  surface  described  therein.     It 
confers  no  extra-lateral  rights.14    A  patent  for  a  lode 
claim  may  be  carved  out  of  land  previously  patented 
as  placer  ground.15 

6.  EQUIVALENT  TO  PATENT.    An   uncancellod   cer- 
tificate of  purchase  is  equivalent  to  a  patent  as  far  as 
the  rights  of  third  parties  are  concerned.16 

7.  VOID   PATENTS.     Patents   are  void  upon  their 
face  when  issued  without  authority  of  law,  prohib- 
ited by  statute  or  for  land  reserved  from  sale  or  which 
has  been  dedicated  to  special  purposes  or  the  title  to 
which  had  previously  passed  from  the  government.17 

8.  VOIDABLE    PATENTS.     A    patent    obtained    by 
fraud  of  the  rights  of  the  government  is  subject  to 
cancellation.18 

See  §  82,  ante. 

1.  St.  Louis  Co.  v.  Mont.  Co.,  113  Fed.  900;  Talbott  v.  King, 

6  Mont.  76.  The  patent  to  a  mining-  claim  or  a  town- 
site  is  a  quitclaim  deed  from  the  United  States.  It  is 
recorded  upon  its  public  records  and  is  notice  to  the 
world  of  what  it  contains.  Eugene  McCarthy,  14  L. 
D.  105.  The  recording  of  the  patent  is  in  law  delivery 
to  the  patentee.  U.  S.  v.  Schurz.  102  U.  S.  378.  If  the 
government  possesses  at  the  time  no  title,  none  passes 
by  its  execution.  Patterson  v.  Tatum,  18  Fed.  Cas. 
1083. 

2.  Reed  v.  Munn,  148  Fed.  737;    Butte  City  S.  H.  L.  cases,  6 

Mont.  397.  The  patent  passes  whatever  title  the  gov- 
ernment had  to  the  surface  and  to  any  vein  or  lode 
thereunder  not  otherwise  granted  or  reserved.  Kahn 
v.  Old  Tel.  Co.,  2  Utah,  174;  see  Iron  Co.  v.  Elgin  Co., 
118  U.  S.  196;  St.  Louis  Co.  v.  Mont.  Co.,  194  U.  S.  235; 
Amador  Median  Co.  v.  S.  Spring  Hill  Co.,  36  Fed.  668, 
Colo.  Cent.  Co.  v.  Turck,  50  Fed.  888;  Woods  v.  Holden, 
26  L.  D.  198.  27  L.  D.  375;  Parrot  Co.  v.  Heinze,  25 


254  PATENTS.  [Ch.  30 

Mont.  139;  Grand  Cent.  Co.  v.  Mammoth  Co.,  29  Utah, 
490;  see  A.  C.  M.  Co.  v.  Court,  25  Mont.  504. 

3.  Davis  v.  Weibbold,  139  U.  S.  507. 

4.  Rev.   Stats.,   §§2332-2340;   29   Stats.   120;   30  Stats.   404.     As 

to  highways,  see  Rockwell  v.  Graham,  9  Colo.  36.  As 
to  a  judgment  creditor,  see  Butte  H.  Co.,  v.  Frank,  25 
Mont.  344.  It  may  create  a  dower  right.  Black  v. 
Elkhorn  Co..  163  U.  S.  445. 

5.  Coleman  v.  McKenzie,  28  L.  D.  348. 

6.  St.  Louis  Co.  v.  Kemp,  104  U.  S.  636;    Schwab  v.  Beam,  86 

Fed.  41;    U.  S.  v.  Rizzinelli,  182  Fed.  675. 

7.  Rev.  Stats.,  §  2326. 

8.  Coleman    v.    McKenzie,    ante.      It   is    sufficient   to    comply 

with  all  the  requirements  necessary  to  maintain  the 
possessory  right.  Chapman  v.  Toy  Long,  5  Fed.-  Gas. 
2610;  Gillis  v.  Downey,  85  Fed.  483;  Daggett  v.  Yreka 
Co.,  149  Cal.  357.  Possession  alone  is  sufficient  to  es- 
tablish a  right  to  a  patent.  Rev.  Stats.,  §2332;  Bark- 
lage  v.  Russell,  29  L.  D.  401;  Altoona  Co.  v.  Integral 
Co.,  114  Cal.  100;  Cleary  v.  Skiffich,  28  Colo.  362; 
McCowan  v.  Maclay,  16  Mont.  234.  It  is  wholly  a  mat- 
ter of  self  interest  when  a  patent  shall  be  applied 
'for.  Chapman  v.  Toy  Long,  ante. 

9.  Chapman  v.  Toy  Long,  ante. 

10.  Haws  v.  Victoria  Copper  Co.,   160  U.  S'.  303. 

11.  Amador  Median  Co.  v.  S.  Spring  Hill  Co.,  ante;    see  Woods 

v.  Holden,  ante;  see  East  Or.  Co.  v.  Willow  R.  Co.,  187 
Fed.   466. 
lla.  Last  Chance  Co.  v.  Tyler  Co.,  61  Fed.  557. 

12.  Iron   Co.   v.    Cheesman,    116    U.    S.    529;     Doe   v.    Waterloo 

Co.,  54  Fed.  935;    see  §110-4,  ante. 

13.  Jones  v.  Prospect  Co.,  21  Nev.  339;    see  §  50-49,  ante. 

14.  Noyes  v.  Mantle,   127   U.   S.   348;    Sullivan  v.   Iron  Co.,   143 

IT.  S.  431;  Clipper  Co.  v.  Eli  Co.,  194  U.  S.  220;  Mt. 
Rosa  Co.  v.  Palmer,  26  Colo.  56. 

15.  Iron  Co.  v.  Campbell,   135  U.  S.   286. 

16.  Deffeback  v.  Hawke,  115  U.  S.  392;    Aurora  Hill  Co.  v.  85 

Mg.  Co.,  34  Fed.  515;  see  §28-11,  ante;  §§214-15,  post. 
A  valid  location  may  be  equivalent  to  a  patent.  Tal- 
bott  v.  King,  ante. 

17.  See  Doolan  v.   Carr,   125  U.   S.   618;    Iron   Co.  v.   Campbell, 

ante;  Garrard  v.  S.  P.  Mines,  82  Fed.  578;  King  v.  Mc- 
Andrews,  111  Fed.  860;  Standard  Co.  v.  Habishaw,  132 
Cal.  115;  Poire  v.  Wells,  6  Colo.  406;  Rose  v.  Rich- 
mond Co.,  17  Nev.  25.  When  a  patent  is  not  assailable 
see  St.  Louis  Co.  v.  Kemp,  ante;  see  Cowell  v.  Lam- 
mers,  21  Fed.  200;  New  Dunderberg  Co.  v.  Old,  79  Fed. 
598;  Justice  Co.  v.  Lee,  21  Colo.  260.  The  test  of  juris- 
diction is  the  right  to  enter  upon  the  inquiry  and  to 
make  some  decision.  King1  v.  McAndrews,  ante. 

18.  Colo.  Coal  Co.  v.  U.  S'.,  123  U.  S.  307;  U.  S.  v.  Iron  Co.,  128 

U.  S.  673;  U.  S.  v.  Trinidad  Co.,  137  U.  S  160;  see  U.  S.  v. 
Chandler-Dunbar  Co.,  209  U.  S.  447;  Illinois  Co.  v. 
Budzisz,  82  Fed.  160;  see  U.  S.  v.  Smith,  181  Fed.  545. 

§  207.  Legal  title.  The  patent  is  the  superior  and 
exclusive  evidence  of  the  legal  title.1 

2.  EQUITABLE  TITLE.  The  person  named  as  the 
patentee  is  not,  necessarily,  the  exclusive  owner  of 


§207]  LEGAL  TITLE.  255 

the  premises  described  in  the  patent.2  He  may  be 
judicially  declared  to  be  a  trustee  3  unless  suit  be 
barred  by  limitation  or  laches.4  An  adjudication 
against  the  government  in  a  suit  brought  by  it  to 
annul  a  patent  will  not  prevent  the  assertion  of 
equitable  rights  in  the  land  by  a  person  not  a  party 
thereto.5 

3.  SUPERIORITY  OF  TITLE.     In  a  controversy  be- 
tween a  placer  patentee  and  a  lode  patentee  or  between 
mineral  patentees  and  townsite  patentees  the  question 
of  the  superiority  of  title  under  different  patents  for 
the  same  land  may  arise.     If  the  decision  depends 
upon  extrinsic  facts,  not  shown  by  the  patent,  they 
may  be  established  by  proof  thereof.6 

4.  PRIORITY   OF    TITLE.     In   controversies   arising 
over  the  extra-lateral  right  priority  of  location  and 
not  of  patent  will  prevail.7 

5.  EVIDENCE.     When  material  to  the  issues  raised 
and  when  not  shown  by  the  patent  the  date  of  the 
location  may  be  established  by  evidence  in  the  same 
manner  as  any  other  question  of  fact  not  settled  by 
the  patent  itself.8 

6.  FACTS  SETTLED  BY  PATENT.     In  its  potency  a 
patent  is  iron-clad  against  all  mere  speculative  infer- 
ences.9   Unless  set  aside  and  annulled  by  direct  pro- 
ceedings by  the  government 10  a  patent,  regular  on  its 
face,  establishes  the  regularity  of  its  issuance,11  the 
fact  that  no  adverse  claim  exists,12  the  nature  of  the 
land,13  and  the  exterior  boundaries  of  the  claim; 14  if 
a  lode  patent,  that  the  apex  of  a  vein  or  lode  exists 
within  the  claim  but  not  that  such  vein  or  lode  dips 
beyond  the  side  lines  nor  that  it  is  the  apex  of  a  vein 
or  lode  in  dispute  between  adverse  dip  claimants.15 

7.  PRESUMPTIONS.     The    presumption    is    that    a 
patent  is  valid,16  that  the  owner  of  a  patented  claim 
is  in  the  possession  thereof,17  that  following  a  vein  or 


256  PATENTS.  [Ch.  30 

lode    upon    its    dip    into    territory    adversely    held 
(whether  patented  or  not),  is  a  trespass.18 

See  §  68,  ante,  §  82,  ante,  §  206,  ante. 

1.  Bagnell  v.  Broderick,  38  U.  S.  436;  Steel  v.  St.  Louis  Co., 

106  U.  S.  447;  Iron  Co.  v.  Campbell,  135  U.  S.  286; 
Frellsen  &  Co.  v.  Crandell,  217  U.  S.  71;  Aurora  Hill 
Co.  v.  85  Mg.  Co.,  34  Fed.  515;  Lonabaugh  v.  U.  S.,  179 
Fed.  476;  see  Hickey  v.  Anaconda,  33  Mont.  46. 

2.  See  §  82,  note  5.     A  suit  to  declare  a  trust  may  be  brought 

after  entry  and  before  patent.  Malaby  v.  Rice,  15 
Colo.  A.  364.  A  protest  may  not  furnish  a  basis  for 
such  a  suit.  Neilson  v.  Champagne  Co.,  119  Fed.  123. 

3.  Hunt  v.  Patchin,  35  Fed.  816;  Suessenbach  v.  Bank,  5  Dak. 

477.  In  Van  Sice  v.  Ibex  Co.,  173  Fed.  609,  the  interest 
of  one  of  the  named  patentees  had  previously  passed, 
by  forfeiture,  to  the  others.  See  also  Turner  v.  Saw- 
yer, 150  U.  S.  578;  see  also  Mery  v.  Brodt,  121  Cal.  332. 

4.  Alsop  v.  Riker,   155  U.  S.  448;    see  Hanchett  v.  Blair,   100 

Fed.  817;    Potts  v.  Alexander,  118  Fed.  885, 

5.  Brandon  v.  Ard,  211  U.  S.  11. 

6.  Iron  Co.  v.  Campbell,  ante;    Davis  v.  Weibbold,  139  U.  S'. 

507. 

7.  Last  Chance  Co.  v.  Tyler,  61  Fed.  557. 

8.  Td. 

9.  Standard  Co.  v.  Habishaw,  132  Cal.  115. 

10.  Barden  v.  N.   P.  R.  Co.,   154  U.   S.   288;  Burfenning  v.  Chi- 

cago Co.,  163  U.  S.  321;  see  also  Corrine  Co.  v.  John- 
son, 156  U.  S.  574;  Bishop  v.  Gibbons,  158  U.  S.  155; 
Shaw  v.  Kellogg,  170  U.  S.  312;  Carter  v.  Thompson, 
65  Fed.  329;  U.  S.  v.  Winona  R.  R.,  67  Fed.  948;  Bealy 
v.  Napthaly,  73  Fed.  120;  Dreyfus  v.  Badger,  108  Cal. 
58;  Galbraith  v.  Shasta  Iron  Co.,  143  Cal.  94. 

11.  Hooper  v.  Young,  140  Cal.  274. 

12.  Rev.  Stats.,  §2325;    see  Rose  v.  Richmond  Co.,  17  Nev.  25; 

Deno  v.  Griffin,  20  Nev.  249;  see  Saunders  v.  La  Puri- 
sima  Co.,  125  Cal.  159. 

13.  Barden  v.  N.   P.  R.  Co.,   ante;   Standard  Co.  v.  Habishaw, 

ante. 

14.  Waterloo  Co.  v.  Doe,   82   Fed..  45;   Doe  v.   Sanger,   83   Cal. 

203. 

15.  Grand  Cent.  Co.  v.  Mammoth  Co.,  29  Utah,  490;  see  Law- 

son  v.  U.  S.  Co.,  207  U.  S.  1. 

16.  Eureka  Co.  v.   Richmond  Co.,   8  Fed.   Gas.   4548;   Leviston 

v.  Ryan,  75  Cal.  293. 

17.  Original  Co.  v.  Abbott,  167  Fed.   681. 

18.  Con.  "Wyo.  Co.  v.  Champion  Co.,  63  Fed.  540;  Waterloo  Co. 

v.  Doe,  ante;    Duggan  v.  Davey,  4  Dak.  110. 

§  208.  State  Legislation.  After  the  issuance  of 
the  patent  the  land  described  therein  is  subject  to 
state  legislation  so  far  as  the  same  may  be  consistent 
with  the  admission  that  the  title  passed  and  vested 
according  to  the  laws  of  the  United  States.1 

1.  Wilcox  v.   McConnell,   13   Pet.    498;    see  Black  v.   Elkhorn, 
163  U.  S.  445. 


§211]  PATENT  PROCEEDINGS.  257 

CHAPTER  XXXI. 

PATENT  PROCEEDINGS. 

§  211.  In  general — manner  of  obtaining  patent — limitations — 
survey  of  claims — all  placer — mixed  lode  and  placer 
— waiver — adverse  claimant — time  to  apply  for  a  pat- 
ent— place  of  filing- — time  to  complete  application — 
completion — payment — divers  patents — erroneous  de- 
scription. 

§  212.  The  survey — accompanying  papers — deputy  surveyor — 
duties  of  deputy — errors  of  deputy — expenditure  upon 
the  claim — conclusiveness  of  certificate — equivalent 
of  certificate — basis  of  deputy's  report — sufficient  ex- 
penditure—  insufficient  expenditure  —  plat  and  field 
notes. 

§213.  Posting  plat  and  notice  —  proof  of  posting  —  time  for 
filing. 

§214.  Proceedings  in  the  local  land  office  —  application  for 
patent — citizenship — appointment  of  attorney — ab- 
stract of  title — subsequent  transfers — the  notice — 
contents  of  notice — insufficient  notice — publication 
of  notice — charges  for  publication — proof  of  pub- 
lication— proof  of  continuous  posting — statement  of 
fees  and  charges — application  to  purchase — receiver's 
receipt — transmission  of  record — protest — grounds  of 
protest — waiver  of  protest — delayed  patent — cancella- 
tion of  entry. 

§  215.  Adverse  claim — distinction — contents  of  adverse  claim 
— time  for  filing  adverse — computation  of  time — no 
extension  of  time — effect  of  filing  adverse — evidence 
of  waiver — appeal. 

§  216.  The  adverse  suit — subsequent  proceedings — duty  of 
register — proceedings  in  general  land  office. 

§  211.  In  General.  A  patent  for  land  claimed  and 
located  for  valuable  mineral  deposit  may  be  obtained 
only  by  a  person,  association  or  corporation  author- 
ized to  locate  a  mining  claim,  and  which  may  have 
complied  with  the  terms  of  the  mining  act  in  respect 
to  such  location,  or  by  the  grantee  of  the  locator.1 
That  act  provides  what  steps  are  necessary,  and  the 
land  department  regulates  the  proceedings  for,  and 
finally  determines  the  right  to  the  patent.2 

2.  MANNER  OF  OBTAINING  PATENT.  The  manner 
of  obtaining  a  patent  for  either  a  lode  or  a  placer 
claim,  whether  for  a  single  or  for  a  consolidated  claim 
of  contiguous  lode  or  lode  and  placer  locations,3  that 
is,  those  which  touch  sides,  lie  alongside  of,  adjacent 


258  PATENT    PROCEEDINGS.  [Ch.  31 

or  adjoin,4  with  or  without  a  mill-site,  or  for  a  mill- 
site  alone,  is  substantially  similar.5 

3.  LIMITATIONS.     Only    a    reasonable    number    of 
mill-sites  can  be  patented  in  connection  with  a  group 
of  contignous  locations  held  under  one  ownership.6 
An  application  for  saline  lands  is  limited  to  a  single 
location  of  20  acres.7 

4.  SURVEY  OF  CLAIMS.    All  lode  claims,  mill-sites  8 
and   placer   locations   which  have   not   been   located 
according  to  the  rectangular  subdivisions  of  the  public 
surveys  must  be  officially  surveyed.9 

5.  ALL  PLACER.     If  the  claim  be  all  placer  ground 
that  fact  must  be  stated  in  the  application  and  be 
corroborated  by  the  affidavit  of  two  other  persons.10 

6.  MIXED  LODE  AND  PLACER.     If  the  ground  con- 
tains both  a  lode  and  placer  deposit  such  fact  should 
be  stated,  together  with  a  specific  description  of  all 
known  lodes  situated  within  the  boundaries  of  the 
placer  location.11 

7.  WAIVER.    A  known  vein  or  lode  situated  within 
a  placer  claim  must  be  specifically  applied  for  by  the 
placer  claimant  or  his  right  thereto  is  waived.12 

8.  ADVERSE  CLAIMANT.     If  claimed  adversely  the 
lode  claimant  should  "adverse/'  not  "protest"  against 
the  placer  application.13 

9.  TIME  TO  APPLY  FOR  A  PATENT.     There    is   no 
limit  to  the  time  that  a  mining  claim  must  be  located 
before  application  for  patent  may  be  made.     It  may 
be  located  on  one  day  and  official  survey  applied  for 
the  next.14    But  the  record  must  precede  the  making 
of  such  survey,15  and  the  location  be  otherwise  valid.10 

10.  PLACE  OF  FILING.    The  application  for  patent 
must  be  filed  in  the  United  States  land  office  in  the 
district  in  which  the  claim  is  wholly  situated.17 

11.  TIME  TO  COMPLETE  APPLICATION.    The  applica- 
tion must  be  completed  within  a  reasonable  time  after 
the  expiration  of  the  period  of  publication  or  after 


§  211]  PATENT  PROCEEDINGS.  259 

the  termination  of  adverse  proceedings  in  the  courts.18 

12.  COMPLETION.     An  application    for    patent  is 
"completed"  by  filing  the  necessary  proofs  and  mak- 
ing payment  for  the  land.19 

13.  PAYMENT.     Payment  for    the    land  embraced 
within  the  claim  is  at  the  rate  of  $5  an  acre  and  each 
fractional  part  of  an  acre  in  a  lode  claim,  whether 
within  or  without  a  placer  claim,  and  $2.50  an  acre 
and  fractional  part  thereof  for  a  placer  location.20 

14.  DIVERS  PATENTS.     Where  several  parties    are 
found  to  be  entitled  to  separate  and  different  portions 
of  the  same  claim  each  may  pay  for  his  part  21  and 
receive  a  patent  therefor  in  his  own  name,  or  if  dead 
the  patent  will  issue  to  his  heirs.22 

15.  ERRONEOUS   DESCRIPTION.     An  erroneous   de- 
scription or  calls  in  a  patent  must  give  way  to  the 
monuments  of  the  claim  as  placed  upon  the  ground.23 

1.  Rev.  Stats.,  §2325;  see  Golden  Crown  Lode,  32  L.  D.   217; 

Bunker  Hill  Co.  v.  Shoshone  Co.,  33  L.  D.  142;  Lacka- 
wanna  Placer  Claim,  46  L.  D.  36;  see  So.  Car.  Claims, 
29  L.  D.  602;  Extra  Lode  Claim,  34  L.  D.  590. 

2.  Knight  v.  U.  S.  Land  Assn.,  142  U.  S.  161;  Bunker  Hill  Co. 

v.  Shoshone,  ante. 

3.  Mayflower  Co.,  29  L.  D.  7;    Hidden  Treasure,  35  L.  D.  485; 

see  Mt.  Chief  Claims,  36  L.  D.  100;  Aldebaran  Co.,  36 
L.  D.  551. 

4.  Hidden  Treasure,  ante. 

5.  Min.  Reg.,  pars.  58-59. 

6.  Alaska  C.  Co.,  32  L.  D.  128;    Hard  Cash,  34  L.  D.  325. 

7.  31   Stats.   745. 

8.  Min.  Reg.,  par.  34;    see  par.  58. 

9.  Min.  Reg.,  par.  58.     Ten-acre  lots  are  considered  as  legal 

subdivisions.  Min.  Reg.,  pars.  22-24;  G.  A.  Khern,  6 
L.  D.  580;  Mary  Darling,  31  L.  D.  64. 

10.  Min.  Reg.,  pars.  26-60. 

11.  Min.  Reg.,  par.   60. 

12.  Rev.  Stats.,  §2333;    Min.  Reg.,  par.   26;    Reynolds  v.  Iron 

Co.,  116  U.  S.  687;  Cape  May  Co.  v.  Wallace,  27  L.  D. 
676;  see  Aurora  Lode  v.  Bulger  Hill  Co.,  23  L.  D.  95; 
Alice  Placer,  27  L.  D.  661. 

13.  Elda  Co.  v.  Mayflower  Co.,  26  L.  D.  573. 

14.  Gowdy  v.  Kismet  Co.,  22  L.  D.  624;    Nome  &  Sinook  Co.  v. 

Townsite,  34  L.  D.  276. 

15.  Min.  Reg.,  par.  35. 

16.  Bunker  Hill  Co.  v.  Shoshone  Co.,  ante. 

17.  Fred.  A.  Williams,  17  L.  D.  282;    Alaska  Placer,  34  L.  D. 

40;  Foolkiller  Lode,  35  L.  D.  595. 

18.  Min.  Reg.,  pars.  56-57;  Copper  Bullion  Claims,  35  L.  D.  27. 

19.  Rev.  Stats.,  §2325;    Min.  Reg.,  par.  56. 


266  PATENT    PROCEEDINGS.  [Ch.  31 

20.  Rev.  Stats.,  §  2325-2333. 

21.  Iron  Co.  v.  Campbell,  135  U.  S.  286. 

22.  Min.  Reg.,  par.   71;  Liddia  Claim,  33  L.  D.  127;  see  Moth- 

ower  v.  Hunter,   15  Wyo.   189;    Tripp  v.  Dunphy,   38  L. 

23.  Rev.'  Stats.,  §  2327. 

§  212.  The  Survey.  An  application  for  an  official 
survey  is  a  written  unverified  request,  subscribed  by 
the  claimant,  his  agent  or  attorney.  It  is  addressed 
to  the  surveyor-general  for  the  district  in  which  the 
claim  may  be  situated.1 

2.  ACCOMPANYING  PAPERS.    The  request  for  a  sur- 
vey should  be  accompanied  by  a  duly  certified  copy  of 
the  record  of  location  2  or  a  verified  statement  showing 
sufficient  reason  for  its  absence ;  3  also  by  a  certifi- 
cate of  deposit  sufficient  to  cover  the  cost  of  prelimi- 
nary work  in  the  office  of  said  surveyor-general.    This 
certificate  should  be  issued  by  a  United  States  sub- 
treasurer  or  United  States  depositary.4 

3.  DEPUTY  SURVEYOR.     The  request  usually  con- 
tains the  name  of  the  United  States  deputy  mineral 
surveyor  chosen  by  the  applicant  for  making  the  sur- 
vey.5    The  deputy  selected  must  have  no  interest  in 
the  claim.6     His  charges  must  be  met  by  the  appli- 
cant.7 

4.  DUTIES  OF  DEPUTY.    The  deputy  must  make  an 
actual  survey  of  the  claim.8     A  delegation    of    his 
power  may  cause  a  rejection  of  the  survey.9    He  must 
not  act  as  surveyor,  notary  public  nor  as  attorney  in 
the  same  case.10     He  must  transmit  to  the  surveyor- 
general  his  field  notes,  a  plat  of  the  survey,  affidavits 
of  expenditure,  and  in  placer  applications  a  descrip- 
tive report.11 

5.  ERRORS  OF  DEPUTY.    Where  errors  occur  in  the 
survey  through  the  carelessness  or  negligence  of  the 
deputy  the  claimant  should  apply  for  an  amended 
survey.12     The  failure  of  the  deputy  to  amend  the 
survey  within    the    time    prescribed  by  the  General 


§212]  THE    SURVEY.  261 

Land  Office  is  ground  for  his  suspension  or  removal 
from  office.13 

6.  EXPENDITURE  UPON  THE  CLAIM.    It  is  usual  but 
not  essential  for  the  surveyor-general  to  certify  upon 
the   plat   of  survey  that  the  statutory   expenditure 
precedent  to  patent  has  been  made.14    This  certificate 
is  based  upon  the  report  of  the  deputy  making  -the 
survey,  but  other  or  further  evidence    may  be    re- 
quired.15 

7.  CONCLUSIVENESS    OF    CERTIFICATE.     Unless    at- 
tacked in  the  land  department  such  certificate  is  con- 
clusive of  the  facts  therein  stated.16 

8.  EQUIVALENT  OF  CERTIFICATE.     Where  a  placer 
claim  is  located  according    to    legal  subdivisions  an 
affidavit  made  by  two  or  more  persons  having  no  in- 
terest in  the  property  takes  the  place  of  such  cer- 
tificate.    The  affidavit  must  show  that  not  less  than 
$500   has   been    expended   by   the   applicant   or   his 
grantors  upon  the  claim.    The  work  or  improvements 
must  be  described  in  detail.17 

9.  BASIS  OF  DEPUTY'S  REPORT.    In  other  cases  the 
deputy  must  report  upon  the  value  of  the  improve- 
ments and  include  in  his  estimate  all  actual  expendi- 
tures and  mining  improvements  made  by  the  appli- 
cant or  his  grantors  having  a  direct  relation  to  the 
development  of  the  claim.18 

10.  SUFFICIENT    EXPENDITURE.     The    expenditure 
may  be  upon  or  underneath  the  surface.19     It  may 
consist  of  "assessment  work."  20 

11.  INSUFFICIENT  EXPENDITURE.     A    quartz    mill 
erected  upon  a  lode  claim  21  or  a  lime-kiln    erected 
upon  a  placer  claim  containing  a  deposit    of    lime- 
stone 22  or  buildings,  machinery  or  roadways  not  asso- 
ciated with  actual  mining  excavations  not  essential 
to  the  practical  development  of  and  not  actually  facil- 
itating the  extraction  of  mineral  from  the  claim 23 
will  not  be  sufficient  as  a  condition  precedent  to  ob- 


262  PATENT    PROCEEDINGS.  [Ch.  31 

taining  a  patent.24  Yet  a  mining  dredge  placed  upon 
a  dredge  placer  claim  has  been  held  to  be  sufficient.25 
12.  PLAT  AND  FIELD  NOTES.  Two  copies  of  the 
plat  of  survey  and  one  copy  of  the  field  notes  are 
furnished  by  the  surveyor-general  to  the  applicant. 
One  plat,  together  with  a  notice  of  intention  to  apply 
for  a  patent,  are  to  be  posted  upon  the  claim.26  One 
plat,  together  with  the  field  notes,  are  to  be  filed  as  a 
part  of  the  application  for  patent.27 

1.  Min.  Reg.,  par.  34;    Cir.  to  Applicants,  sub.  1. 

2.  Cir.  to  Applicants,  sub.  2;  see  Golden  Rule  Co.,  37  L.  D.  95. 

3.  Min.  Reg.,  par.  43. 

4.  Min.    Reg.,    par.    91;     Cir.    to   Applicants,    sub.    6;     Geo.   B. 

Foote,  2  L.  D.  773.  Unused  deposits  or  any  excess  in 
the  amount  thereof  in  the  actual  cost  of  work  in  the 
surveyor-general's  office  will  be  refunded  by  the  gov- 
ernment. 36  Stats.  257;  Peter  N.  Hanson,  38  L.  D. 
169-469.  For  repayment  of  moneys  on  entry  cancelled 
see  30  L.  D.  430.  See  Instructions,  39  L.  D.  141-146; 
Margaret  E.  Scully,  38  L.  D.  564;  see  also  §  93-9,  ante. 

5.  Cir.   to  Applicants,   sub.   2-14. 

6.  Geo.  B.  Foote,  ante;    Tipton  Co.,  29  L,.  D.  718. 

7.  Min.    Reg.,    pars.    120-127;     Golden    Rule    Co.,    ante;     see 

Wolfley  v.  Lebanon  Co.,  4  Colo.  112. 

8.  Min.  Reg.,  par.  129.     In  making  the  survey  the  deputy  is 

controlled  by  the  location  notice  and  the  markings  on 
the  ground.  Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569. 

9.  Homer  Santee,   36  L.  D.  286. 

10.  Min.  Reg.,  pars.  93-128.     In  cases  where  great  delay,  ex- 

pense or  inconvenience  can  be  avoided  thereby,  a  dep- 
uty surveyor  may  administer  oaths  to  his  assistants. 
Min.  Reg.,  par.  128. 

11.  Min.   Reg.,   pars.   161-166. 

12.  Golden  Rule  Co.,  ante;  see  Basin  Co.  v.  White,   22  Mont. 

147. 

13.  Id. 

14.  Rev.    Stats.,    §2325;    Min.    Reg.,    par.    50;    see    Nielson    v. 

Champagne  Co.,  29  L.  D.  491. 

15.  Min.  Reg.,  par.  49;    U.  S.  v.  King,  83  Fed.  188, 

16.  Deffeback  v.  Hawke,  115  U.  S.  392;  Olive  Land  Co.  v.  Olm- 

stead,  103  Fed.  568;  Bash  v.  Cascade  Co.,  29  Wash.  50; 
see  Russell  v.  Maxwell  Land  Grant  Co.,  158  U.  S.  253; 
Home  v.  Smith,  159  U.  S.  40;  Miller  v.  Grunsky,  141 
Cal.  451. 

17.  Min.  Reg.,  pars.  25-60;  Draper  v.  Wells,  25  L.  D.  550. 

18.  Min.  Reg.,  par.  156;  Yankee  Lode,  30  L.  D.  289. 

19.  Min.  Reg.,  par.   157. 

20.  See  U.  S.  v.  Iron  Co.,  24  Fed.  568. 

21.  Monster  Lode  No.  2,  35  L.  D.  493. 

22.  Fargo  Group  No.  2,  37  L.  D.  404. 

23.  Min.  Reg.,  par.  157;  Fargo  Group  No.  2,  ante;  see  Elmer 

F.  Cassel,  32  L.  D.  85. 

24.  Schirm  v.  Carey,  37  L.  D.  371. 


§  213]  POSTING   PLAT    AND    NOTICE.  263 

25.  Garden  Gulch  Bar  Placer,  38  L.  D.  28. 

26.  Min.  Reg1.,  pars.  34-39. 

27.  Min.  Reg1.,   par.   38,   sub.   4. 

§213.  Posting  Plat  and  Notice.  Prior  to  filing 
the  application  papers  the  plat  of  survey,  accompan- 
ied by  a  notice  of  intention  to  apply  for  patent,  must 
be  posted  in  a  conspicuous  place  upon  the  claim  sought 
to  be  patented.1  This  notice  must  give  the  date  of  its 
posting,  the  name  of  the  claimant,  the  name  of  the 
claim,  the  number  of  the  survey,  the  mining  district, 
county  and  state,  and  the  names  of  the  adjoining  and 
conflicting  claims  as  shown  by  the  plat  of  survey. 
This  notice,  as  well  as  that  published,  and  also  the  ap- 
plication for  patent,  must  state  in  express  terms  the 
portions  to  be  excluded,  if  any,  as,  land  previously 
certified  or  patented  to  a  state  or  a  railroad  company, 
although  such  conflict  may  not  be  shown  upon  said 
plat.  The  posting  must  be  done  in  the  presence  of 
two  credible  witnesses  2  and  the  matter  must  be  so 
placed  as  to  be  readily  seen  and  examined.3  It  must 
so  remain  during  the  60  days'  period  of  newspaper 
publication  of  the  application.4 

2.  PROOF  OF  POSTING.     The  said  witnesses  must 
sign  the  said  notice  as  such  witnesses.    They  must  also 
make  affidavit  of  the  fact  of  posting.5    This  affidavit 
must  contain  a  copy  of  said  notice  and  state  the  date 
and  particular  place  of  posting.6     It  must  be  made 
within  the  land  district  in  "which  the  property  is  sit- 
uated.7 

3.  TIME  FOR  FILING.    The  affidavit  of  posting  must 
be  filed  prior  to  or  at  the  time  of  filing  the  applica- 
tion for  patent.8 

1.  Rev.  Stats.,  §2325;  Min.  Reg-.,  pars.  39-44;  DeLong  v.  Hine, 

9  C.  L.  O.  114;    see  §  90,  ante. 

2.  Rev.  Stats.,  §2325;    Min.  Reg1.,  par.  40. 

3.  Tom  Moore  Co.  v.  Nesmith,  36  L.  D.  199;  see  §  90,  ante. 

4.  Rev.  Stats.,  §2325;    Min.  Reg-.,  par.  51. 

5.  Rev.  Stats.,  §2325;    Min.  Reg.,  par.   40. 

6.  Min.  Reg.,  par.  40. 


264  PATENT    PROCEEDINGS.  [Ch.  31 

7.  El  Paso  Brick  Co.,  37  L.  D.  155.     All  affidavits  made  out- 

side of  the  proper  land  district  are  insufficient;  Rev. 
Stats.,  §2335;  proceedings  based  thereon  are  void. 
Mattes  v.  Treasury  Co.,  34  L.  D.  314;  N.  Clyde  Claims, 
35  L.  D.  455;  except  that  an  applicant  for  patent  may 
make  affidavit  of  citizenship  and  an  adverse  claimant 
may  verify  his  adverse  claim  when  either  reside  or 
the  latter  at  the  time  is  beyond  the  limits  of  such 
district.  22  Stats.  49;  see  Rico  Lode,  8  L.  D.  223; 
Louisville  Co.  v.  Hayman  Co.,  33  L.  D.  680;  Milford 
Co.,  35  L.  D.  174;  Crosby  Claims,  35  L.  D.  434.  The 
affidavit  is  void  if  made  over  a  telephone.  Mattes  v. 
Treasury  Co.,  33  L.  D.  553. 

8.  Mojave  Co.  v.  Karma,  34  L.  D.  583. 

§  214.  Proceedings  in  the  Local  Land  Office.  Con- 
temporaneously with  the  filing  in  the  local  land  office 
of  proof  of  the  posting  of  the  plat  and  notice  upon 
the  claim  there  should  be  filed  the  following  docu- 
ments :  ! 

1.  APPLICATION  FOR  PATENT.  The  application 
for  patent  must  be  under  the  oath  of  the  claimant 2  or 
his  agent  or  attorney  thereunto  duly  authorized.3  It 
must  show  the  applicant's  compliance  with  the  law, 
his  possessory  right  to  the  premises,  the  origin  thereof 
and  the  basis  of  his  claim  for  a  patent.4 

If  a  lode  claim  is  the  subject  for  patent,  the  vein 
or  lode  must  be  fully  described.5 

If  the  application  be  for  a  gold  placer  claim  it 
must  be  shown  that  the  claim  is  valuable  for  its  de- 
posits of  placer  gold.6  If  for  a  placer  deposit,  other 
than  gold,  there  must  be  a  full  description  of  the 
kind,  nature,  and  extent  of  the  deposit  and  why  it  is 
regarded  as  a  valuable  mineral  claim.7 

If  the  application  covers  saline  (not  borate  nor 
nitrate)  lands  there  must  be  a  statement  to  the  effect 
that  the  applicant  has  never,  either  as  an  individual 
or  as  a  member  of  an  association,  applied  for  nor 
held  other  saline  lands.8 

If  the  application  is  made  by  a  trustee  he  must 
fully  disclose  the  nature  of  the  trust;  and  furnish 
proof  of  the  citizenship  of  himself  and  trustors.9 


§  214]      PROCEEDINGS  IN  THE  LOCAL  LAND  OFFICE.      265 

2.  CITIZENSHIP.    All  applications  for  patent  must 
show  the  citizenship  of  the  applicant.     This  may  be 
by  affidavit,  if  the  applicant  be  a  natural  person.10 
The  citizenship  of  a  corporation  is  proved  by  the  filing 
of  a  certified  copy  of  its  charter  or  articles  of  incor- 
poration.11 

3.  APPOINTMENT  OF  ATTORNEY.     Application  for 
patent  may  be  made  by  an  agent  or  attorney  resident 
of  the  land  district  in  which  the  application  is  made.12 
In  the  case  of  an  individual  applicant  his  agent's  au- 
thority should  be  evidenced  by  letter  of  attorney.    In 
the  case  of  a  corporation  a  copy  of  the  resolution  of 
the  board  of  directors  so  appointing  him  should  be 
certified  to  by  its  secretary  under  the  seal  of  the  cor- 
poration. 

4.  ABSTRACT    OF    TITLE.     The    abstract    of    title 
should  contain  a  copy  of  the  notice  of  location,  certi- 
fied by  the  legal  custodian  thereof.    The  abstract  must 
be  completed  to  the  filing  of  the  application.13 

It  may  be  certified  either  by  the  legal  custodian  of 
the  records,  or  by  a  duly  authorized  abstracter  of 
titles.  The  certificate  of  either  must  state  that  no 
conveyances  affecting  the  title  to  the  claim  or  claims 
appear  of  record  other  than  those  set  forth.14 

An  abstracter  of  titles  must  further  show  that  he  is 
authorized  to  compile  abstracts  of  title  by  the  law 
of  the  state  in  which  he  resides.15 

In  the  event  that  the  mining  records  have  been 
destroyed  or  lost,  affidavit  of  such  loss  should  be  made. 
In  such  case  secondary  evidence  of  possessory  title  is 
received.16 

5.  SUBSEQUENT   TRANSFERS.    Transfers  made  sub- 
sequent to  the  filing  of  the  application  are  not  con- 
sidered by  the  land  department.17    In  the  event  of  the 
death   of   the   applicant   certificate   and   patent   will 
nevertheless  issue  in  his  name.17a 


266  PATENT    PROCEEDINGS.  [Ch.  31 

6.  THE  NOTICE.    The  applicant  must  furnish  to 
the  officers  of  the  land  office  three  copies  of  a  notice ; 
one  for  publication  in  the  newspaper,  one  for  posting 
in  the  land  office  during  the  period  of  such  publica- 
tion,18 and  one  for  the  use  of  the  special  agent  who 
may  be  sent  by  the  government  to  examine  into  the 
good  faith  of  the  application.19 

7.  CONTENTS  OF  NOTICE.     This   notice   must    em- 
brace all  the  data  given  in  the  notice  posted  upon  the 
claim.     It  should  also  state  the  connecting  line  as 
shown  by  the  plat  and  field  notes,  and  thence  the 
boundaries  of  the  claim  by  courses  and  distances.20 
It  is  sufficient  if,  taken  as  a  whole,  it  designates  the 
situation  of  the  claim  on  the  ground  with  substantial 
accuracy,21  although  it  may  lack  a  required  element 
in  such  a  notice.22    The  notice  should  not  be  so  abbre- 
viated as  to  curtail  the  description  essential  to  a  per- 
fect notice.23 

8.  INSUFFICIENT  NOTICE.     If  the  notice  be  insuffi- 
cient the  application  for  patent  is  defective.     There- 
upon,  from  that  point,  the  proceedings  must  com- 
mence anew.24 

9.  PUBLICATION  OF  NOTICE.     The  notice  must  be 
published  in  a  newspaper  designated  by  the  register  as 
the  one  nearest  to  the  claim.25     The  newspaper  must 
be  one  of  established  character  and  of  general  circula- 
tion.26   The  publication  is  made  at  the  expense  of  the 
applicant.27    The  latter  must  file  the  agreement  of  the 
publisher  of  such  newspaper  holding  the  applicant 
alone  responsible  for  the  expense  thereof.28 

10.  CHARGES    FOR    PUBLICATION.      The    advertise- 
ment should  be  in  the  usual  body  type  used  for  ad- 
vertisements.29    It  must  be  inserted  for  sixty  con- 
secutive  times   in   a   daily   newspaper   or   nine   con- 
secutive times  in   a  weekly  newspaper.30     A    daily 
newspaper  may  charge  not  more  than  $7  and  a  weekly 
newspaper  not  more  than  $5  for  each  ten.  lines  of 


§  214]     PROCEEDINGS  IN  THE  LOCAL,  LAND  OFFICE.      267 

space  occupied  in  each  issue  for  the  entire  period 
required  by  law.31 

11.  PROOF  OF  PUBLICATION.     After  the  statutory 
period  for  publication  of  the  notice  has  expired  the 
applicant  must  furnish  from  the  office  of  publication 
an  affidavit  showing  such  publication.32     This  must 
specifically  state  the  first  and  last  day  thereof 33  and 
should  have  attached  thereto  a  copy  of  the  notice  as 
published. 

12.  PROOF    OF    CONTINUOUS    POSTING.      The    fact 
that  the  plat  and  notice  remained  posted  upon  the 
claim  during  the  period  of  publication  of  the  notice 
must  be  shown  by  the  affidavit  of  the  applicant  or 
his  duly  authorized  agent  or  attorney  in  fact,  stating 
the  dates.34 

13.  STATEMENT  OF  FEES  AND  CHARGES.     In    the 
absence  of  an  adverse  claim  the  applicant  may  imme- 
diately after  or  at  the  time  of  filing  proof  of  post- 
ing and  of  publication  file  a  verified  statement  show- 
ing the  charges  and  fees  paid  by  him  for  the  official 
survey,  for  publication,  land  office  fees,  and  for  the 
land  embraced  in  the  claim.35 

14.  APPLICATION  TO  PURCHASE.     A  written  appli- 
cation to  purchase  is  then  also  filed  with  the  local  land 
officers.    Thereupon,  no  objection  appearing,  the  land 
may  be  paid  for  and  the  receiver's  receipt  issue.36 

15.  EECEIVER'S  EECEIPT.     A    subsisting   receiver's 
receipt,  if  in  the  form  of  a  certificate  of  purchase,  is 
equivalent  to  a  patent,  as  far  as  the  rights  of  third 
parties  are  concerned,37  but  if  it  is  merely  in  the  form 
of  a  receipt  for  money  paid  by  the  applicant,  it  does 
not  form  a  link  in  the  chain  of  title.37a 

It  may  be  cancelled  by  the  land  department  on  the 
ground  of  fraud  or  mistake,38  due  notice  and  oppor- 
tunity to  be  heard  having  first  been  given  to  the  appli- 
cant.39 


268  PATENT    PROCEEDINGS.  [Ch.  31 

It  is  void  if  issued  during  the  pendency  of  an 
adverse  suit.40 

After  its  issuance  annual  expenditure  upon  the 
claim  affected  thereby  is  unnecessary ;  41  unless  the 
receipt  was  obtained  by  fraud.42 

16.  TRANSMISSION  OF  KECORD.    After  the  issuance 
of  the  receiver's  receipt  the  local  land  officers  forward 
the  entire  record  to  the  General  Land  Office  at  Wash- 
ington and  a  patent  is  issued  thereon  if  the  proceed- 
ings are  found  to  be  regular.43 

17.  PROTEST.     At   any  time  prior  to   the  actual 
issuance  of  the  patent  a  protest  may  be  filed  by  any 
person  against  the  patenting  of  the  claim  as  applied 
for.44 

18.  GROUNDS  OP  PROTEST.    A  protest  may  be  based 
upon  any  ground  tending  to  show  that  the  applicant 
has  failed  to  comply  with  the  law    in    any  manner 
essential  to  a  valid  entry  under  the  patent  proceed- 
ings,45 as,  for  instance,  that  the  annual  assessment 
work  has  not  been  performed,  that  the  necessary  $500 
has  not  been  expended  in  labor  and  improvements 
upon  the  claim,  that  the  application  was  not  made 
by  the  proper  party,  that  the  claimant  was  guilty  of 
laches  in  making  entry,  that  the  second  publication 
and  posting  of  notice  was  not  preceded  by  the  filing 
of  a  new  application  for  patent453-  A  protest  may  also 
be  based  upon  the  fact  that  the  protestant  is  a  claim- 
ant of  a  present  joint  interest  in  the  premises  sought 
to  be  patented ;  that  he  is  excluded  from  the  applica- 
tion to  the  prejudice  of  his  rights  therein.46 

19.  WAIVER   OP  PROTEST.     Unless  the   protest   is 
based  upon  the  latter  ground  a  contract  based  upon 
a  promise  not  to  protest  is  illegal  and  void  as  against 
public  policy.47 

20.  DELAYED  PATENT.     Where  suit  is  brought  in 
protection  of  an  equitable  interest  in  the  property 
and  the  land  department  is  properly  advised  thereof 


§  214  J     PROCEEDINGS  IN  THE  LOCAL  LAND  OFFICE.      269 

the  issuance  of  the  patent  will  be  delayed  until  the 
respective  rights  of  the  parties  have  been  settled  by 
the  court.48  In  other  cases  proceedings  under  the 
protest  are  confined  to  the  land  department,49  gener- 
ally without  right  of  appeal.50 

21.  CANCELLATION  OF  ENTRY.  The  cancellation  of 
an  entry  is  not  necessarily  fatal  to  the  rights  of  the 
applicant.51 

1.  Rev.  Stats.,  §2325;    Min.  Reg.,  pars.  40  et  seq.     If  the  land 

is  not  open  to  entry  or  the  application  is  subject  to 
other  objections,  filing  will  be  refused.  The  reasons 
for  the  refusal  must  be  given  and  thirty  days  allowed 
for  appeal.  Min.  Reg.,  par.  44.  Stemmons  v.  Hess,  32 
L.  D.  220;  see  Cleveland  v.  Eureka  No.  1;  31  L.  D.  69; 
E.  J.  Ritter,  37  L.  D.  715;  see  §29-5,  ante. 

2.  Rev.  Stats.,  §2325;    Min.  Reg.,  par.  41. 

3.  21   Stats.   61;   Cir.    8   L.   D.    505;   see   Crosby  Claims,    35   L. 

D.  434;  see  note  12,  post.  t 

4.  Min.  Reg.,  par.  41. 

5.  Id.     See  Instructions,  38  L.  D.  40.     If  the  application  in- 

cludes a  mill-site  or  the  latter  is  applied  for  sepa- 
rately it  must  appear  by  the  affidavit  of  at  least  two 
witnesses  that  the  land  is  non-mineral  in  character. 
Min.  Reg.,  par.  65;  see  Min.  Reg.,  pars.  61-65. 

6.  Min.  Reg.,  par.  60.     A  placer  applicant  is  required  to  de- 

scribe fully  the  natural  features  of  the  claim;  streams, 
if  any,  must  be  fully  described  as  to  their  course, 
amount  of  water  carried,  fall  within  the  claim,  the 
kind  and  amount  of  timber  and  other  vegetation 
thereon  and  adaptability  to  mining  and  other  uses. 
Id. 

7.  Id. 

8.  31  Stats.  745;    Min.  Reg.,  par.  31;    see  Ter.  N.  M.,  35  L.  D. 

1;  Elliott  v.  S.  P.  R.  Co.,  35  L.  D.  149;  Lovely  Placer 
Claims,  35  L.  D.  426.  A  person  holding  saline  lands  as 
an  assignee  may  patent  the  same  provided  he  has  not 
previously  exhausted  his  right.  Min.  Reg.,  par.  31. 

9.  Min.   Reg.,   par.    54;     see   Capricorn   Placer,    10   L.   D.    641; 

Mary  McM.  Latham,  20  L.  D.  379. 

The  names  of  the  trustors  as  well  as  that  of  the 
trustee  are  inserted  in  the  receiver's  receipt.  Min. 
Reg.,  ante. 

10.  Rev.  Stats., -§  2321;    see  Min.  Reg.,  par.  66  et  seq. 

11.  Id.     See  Alta  Mill-site,  8  L.  D.  195;    Louisville  Co.  v.  Hay- 

man  Co.,  33  L.  D.  680;  see  Clarks  Mine,  27  L.  D.  351. 

12.  The  letter  of  attorney  is  not   effective  unless  the  appli- 

cant is  a  non-resident  of  the  land  district.  Crosby 
Claims,  ante,  or  is  temporarily  absent  therefrom.  W. 
B.  Frue,  7  C.  L.  O.  20;  see  El  Paso  Brick  Co.,  37  L.  D. 
155. 

13.  Min.   Reg.,   par.    42.      When    the   abstract   is    not   brought 

down  to  the  date  of  filing  the  application  or  as  close 
thereto  as  is  reasonably  practicable,  a  supplemental 
abstract  must  be  filed.  Dan.  Cameron,  4  L.  D.  515 
The  applicant  must  have  the  full  possessory  right  or 


270  PATENT    PROCEEDING'S.  [Ch.  31 

title  to  the  claim  at  the  date  of  filing  the  application 
Lackawanna  Claim,  36  L.  D.  36;  but  where  a  defect 
exists  and  is  seasonably  cured  without  detriment  to 
others  the  application  is  entitled  to  equitable  con- 
sideration. E.  J.  Ritter,  ante;  see  Carrie  S.  Co.,  29 
L.  D.  287. 

14.  Min.  Reg.,  par.  42. 

15.  Id. 

16.  Min.  Reg.,  par.  43;    Capital  No.  5  Claim,  34  L.  D.  462;    see 

Little  Emily  Co.,  34  L.  D.  182. 

17.  Min.  Reg.,  par.  71.     It  is  common  practice  to  obtain  pat- 

ents from  the  government  without  regard  to  interven- 
ing changes   in   the   right   of   ownership.     Van   Sice   v. 
Ibex  Co.,  173  Fed.   895;  see  Sold  Again  Fraction,   20  L. 
D.   58;   see  Lackawanna  Co.,   ante. 
17a.  Woodman  v.  McGilvary,  39  L.  D.  574. 

18.  Min.    Reg.,    par.    45;     Condon   v.    Mammoth    Co.,    14    L.    D. 

138;  see,  generally,  Chas.  W.  Steele,  3  L.  D.  115;  Bre- 
tell  v.  Swift,  17  L.  D.  558;  Tough  Nut  Claims,  32  L.  D. 
359. 

19.  See  Min.  Reg.   (Placer  Claims),  par.  60. 

20.  Min.  Reg.,  pars.  39-46.     In  view  of  the  different  nature  of 

lode  and  placer  claims,  it  may  be  necessary  to  make 
slight  modifications  in  the  notice.  Min.  Reg.,  par.  59. 

21.  Lonergan  v.  Shockley,  33  L.  D.  238;    see  Juno  Lode  Claim, 

37  L.  D.  365. 

22.  Nielson  v.  Champagne  Co.,  29  L.  D.  491. 

23.  Min.  Reg.,  par.   89,  sub.   1.     The  notice  is  equivalent  to  a 

summons  in  a  judicial  proceeding,  and  he  who  fails  to 
heed  it  has  no  right  to  complain  that  his  rights  are 
concluded  by  his  default  and.  the  issuance  of  the  pat- 
ent in  pursuance  of  the  application.  Wight  v.  Dubois, 
21  Fed.  693;  Bunker  Hill  Co.  v.  Empire  State  Co.,  109 
Fed.  538;  see,  generally,  Jefferson  Co.  v.  Anchoria 
Co.,  32  Colo.  176;  Nesbitt  v.  Delamar  Co.,  24  Nev. 
273;  Lily  Co.  v.  Kellogg,  27  Utah,  111;  see,  also,  Golden 
Reward  Co.  v.  Buxton,  79  Fed.  868;  New  Dunderberg 
Co.  v.  Old,  79  Fed.  598;  Empire  State  Co.  v.  Bunker 
Hill  Co.,  114  Fed.  417;  German  Co.  v.  Hayden,  21  Colo. 
127;  Healey  v.  Rupp,  37  Colo.  25;  So.  End  Co.  v.  Tin- 
ney,  22  Nev.  19. 

24.  Gross  v.  Hughes,  29  L.  D.  467;    S.  Cross  Co.  v.  Sexton,  31 

L.  D.  415;  see  Reed  v.  Bowron,  32  L.  D.  383. 

25.  Min.   Reg.,   par.    47;     Condon   v.   Mammoth   Co.,   ante;     see 

Haynes  v.  Briscoe,  29  Colo.  137.  The  action  of  the  reg- 
ister is  subject  to  review.  Tough  Nut  Claims,  ante; 
N.  P.  R.  Co.,  32  L.  D.  611;  see  Rev.  Stats.,  §  2334. 

26.  Min.  Reg.,  par.  47;    see  Instructions,  38  L.  D.  131. 

27.  Min.  Reg.,  par.  45. 

28.  Id. 

29.  Min.  Reg.,  par.  89,  sub.  1. 

30.  Min.  Reg.,  par.  45.     In  both  cases  the  first  day  of  issue 

must  be  excluded  in  estimating  the  period  of  60  days. 
Id.;  see  Davidson  v.  Eliza  Co.,  28  L.  D.  224. 

31.  Min.  Reg.,  par.  89,  sub.  1;    see  Rev.  Stats.,  §2334.     Exces- 

sive or  exorbitant  charges  will  receive  the  prompt  at- 
tention of  the  land  department  (Min.  Reg.,  par.  94) 
and  possibly  lead  to  the  designation  of  some  other 
newspaper  published  in  the  land  district.  Rev.  Stats., 
§  2334. 


§215]  ADVERSE  CLAIM.  271 

32.  Min.  Reg.,  par.  51. 

33.  Id. 

34.  Id. 

35.  Min.  Reg.,  par.  52. 

36.  Id. 

37.  Maguire  v.  Tyler,   75  U.  S.   650;  Deffeback  v.  Hawke,  115 

U.  S.  392;    Brown  v.  Gurney,  201  U.  S.  184;    Aurora  Hill 
Co.  v.  85  Co.,  34  Fed.  515;  Bingham  Co.  v.  Ute  Co.,  181 
Fed.  748;    Bash  v.  Cascade  Co.,  29  Wash.  50. 
37a.  Con.  G.  &  S.  Co.  v.  Struthers,  41  Mont.   565;    see  Murray 
v.   Polglase,    17  Mont.   455. 

38.  Orchard  v.  Alexander,   157  U.   S.   372;   Parsons  v.  Venzke, 

164  U.  S.  89;  Hosmer  v.  Walace,  47  Cal.  461,  30  L.  D. 
298. 

39.  U.  S.  v.  Detroit  Co.,  200  U.  S.  321;    Rebecca  Co.  v.  Bryant, 

31  Colo.  119;    Romance  Lode  Claim,  31  L.  D.  51. 

40.  Deeney  v.  Min.  Creek  Co.,  11  N.  M.  279. 

41.  Benson  Co.  v.  Alta  Co.,   145  U.  S.   428;    Deno  v.  Griffin,   20 

Nev.  330;    see  S.  End  Co.  v.  Tinney,  ante. 

42.  Murray  v.  Polglase,  23  Mont.  401. 

43.  Min.  Reg.,  par.  52. 

44.  Rev.  Stats.,  §§2325-2326;  Min.  Reg.,  par.  53;  Wight  v.  Du- 

bois,  ante;  see  Crown  Point  Co.  v.  Buck,  97  Fed.  462; 
see  Contests  and  Protests,  39  L.  D.  150;  see  §  24,  ante. 

45.  Min.  Reg.,  par.  53;    Grand  Canyon  Co.  v.  Cameron,  36  L.  D. 

66;  German  Co.  v.  Hayden,  ante;  LeFevre  v.  Amonsan, 
11  Ida.  45.  For  form  of  protest  by  chiefs  of  field  div. 
see  Contests  and  Protests,  ante.  A  court  cannot  deter- 
mine the  sufficiency  of  a  protest.  Cosmos  Co.  v.  Gray 
Eagle  Co.,  104  Fed.  20. 
45a.  Woodman  v.  McGilvary,  ante. 

46.  Id.     See  Golden  and  Cord  Claims,  31  L.  D.  178. 

47.  Roy  v.  Harney  Peak  Co.,  21  S.  Dak.  140. 

48.  Wight   v.    Dubois,    ante;     Northwestern   Co.,   8   L.   D.    437; 

Thomas  v.  Elling,   25  L.  D.   495. 

49.  Wight  v.  Dubois,  ante. 

50.  Bright  v.   Elkhorn  Co.,   8   L.   D.   122;   Dotson  v.   Arnold,   8 

L.  D.  439.  Appeal  attaches  to  a  protest  only  where  the 
protestant  has  a  substantial  interest  in  the  property. 
Min.  Reg.,  par.  53;  Grand  Canyon  Co.  v.  Cameron,  ante; 
see  Wight  v.  Dubois,  ante;  Beals  v.  Cone,  27  Colo.  473; 
but  see  Benjamin  y.  S.  &  C.  P.  R.  Cos.,  21  L.  D.  387. 
A  writ  of  certiorari  may  be  obtained  by  one  denied  the 
right  of  appeal.  Rules  of  Practice,  4  L.  D.  37;  see 
Rules  of  Practice,  39  L.  D.  395. 

51.  Clipper   Co.   v.   Eli   Co.,    194   U.   S.   220;   McGowan  v.   Alps 

Co.,  23  L.  D.  113;  Beals  v.  Cone,  ante;  So.  Cross  v. 
Sexton,  ante;  Peoria  Co.  v.  Turner,  20  Colo.  A.  474; 
see  Lucky  Find  Placer  Claim,  32  L.  D.  200. 

§  215.  Adverse  Claim.  An  adverse  claim  is  limited 
to  the  determination  of  surface  conflicts  arising  from 
independent  conflicting  locations  of  the  same  ground 
by  adverse  mineral  claimants,1  or  between  a  mineral 
claimant  and  the  owner  of  a  mill-site,2  or,  possibly, 


272  PATENT    PROCEEDINGS.  [Ch.  31 

where  the  same  land  is  claimed  by  different  parties 
under  different  laws.3 

2.  DISTINCTION.     An   adverse  claim   affects   only 
private  rights  4  and  must  be  filed  within  the  statutory 
time  and  be  followed  by  suit.5 

A  protest  may  be  filed  at  any  time  before  patent 
issues  6  by  any  person  with  or  without  interest  in  the 
property.7  Neither  can,  properly,  be  made  the  sub- 
ject of  the  other,8  but  a  protest  may,  sometimes,  have 
the  effect  of  an  "adverse."  9  One  who  has  lost  his 
right  to  file  an  adverse  claim  may  still  file  a  protest.10 
No  equitable  right  is  lost  by  failure  to  file  an  "ad- 
verse." 1:L 

3.  CONTENTS   OF    ADVERSE    CLAIM.     The    adverse 
claim  consists  of  a  written  statement  verified  by  the 
person  or  persons  making  the  same.12     It  must  fully 
show  the  nature,  boundaries  and  extent  of  the  inter- 
ference or  conflict 13  and  be  accompanied  by  a  plat,14 
not  necessarily  made  by  a  deputy  mineral  surveyor.15 
This  plat  must  show  the  claimant's  entire  claim  and 
its  relative  situation  or  position  with  the  one  against 
which  he  claims  and  the  extent  of  the  conflict  unless 
both  are  described    by  legal    subdivisions.16     There 
must  also  be  filed  therewith  an  abstract  of  title  or 
other  evidence  of  his  right  of  possession.17 

4.  TIME  FOE  FILING  ADVERSE.     The  adverse  claim 
must  be  filed  in  the  local  land  office  in  which  the 
application  is  pending  within  the  60-days  period  of 
newspaper  publication,18  or  it  is  assumed  that  none 
exists.19 

5.  COMPUTATION  OF  TIME.     Time  is  computed  by 
excluding  the  first  and  including  the  last  day  of  pub- 
lication.20   Whenever  the  latter  day  falls  upon  a  Sun- 
day, or  other  legal  holiday,  the  filing  should  be  not 
later  than  on  the  preceding  day.21 

6.  No  EXTENSION  OF  TIME.    The  time  for  filing  is 
not  enlarged  by  the  fact  of  excessive  newspaper  pub- 


§215]  ADVERSE  CLAIM.  273 

lication  22  nor  by  a  mis-statement  therein  as  to  the 
termination  of  such  period.23  A  temporary  suspen- 
sion of  business  in  the  local  land  office  may,  however, 
operate  as  an  extension  of  the  time.24 

7.  EFFECT  OF  FILING  ADVERSE.    When  filed  within 
the  statutory  period  it  suspends    all    proceedings  in 
the  land  office  except  the  newspaper  publication,  the 
posting  upon  the  claim  and  the  filing  of  proof  thereof 
in  such  office.25     This  suspension  continues  until  the 
controversy  is   finally  determined  by  the   courts,   is 
adjusted  between  the  parties  thereto  or  the  adverse 
is  waived.26 

8.  EVIDENCE    OF    WAIVER.      The    waiver    of    the 
adverse  claim  may  be  by  failure  to  commence  suit 
within  the  thirty-day  period  required  by  law,  or  doc- 
umentary evidence  of  waiver  or  settlement  may  be 
filed.27 

9.  APPEAL.    An  appeal  lies  from  the  rejection  of 
an  adverse  claim  in  the  local  land  office.28    The  pend- 
ency of  such  an  appeal  does  not  enlarge  the  time  for 
filing  the  adverse  suit.29 

1.  Rev.  Stats.,  §2325-2326;    Turner  v.  Sawyer,  150  U.  S.  578; 

Creede  Co.  v.  Uinta  Co.,  196  U.  S.  337;  Lawson  v.  U.  S. 
Co.,  207  U.  S.  1;  N.  Y.  Hill  Co.  v.  Rocky  Bar  Co.,  6  L.  D. 
318;  Smuggler  Co.  v.  Trueworthy,  19  L.  D.  356;  Sny- 
der  v.  Waller,  25  L.  D.  7;  Thomas  v.  Elling,  25  L.  D. 
495;  Grand  Canyon  Co.  v.  Cameron,  35  L.  D.  495;  Lee 
v.  Stahl,  13  Colo.  174;  Allen  v.  Blanche  Co.,  46  Colo. 
199;  Wright  v.  Town,  13  Wyo.  497.  See  U.  S.  Co.  v. 
Wall,  39  L.  D.  546. 

2.  Durgan  v.   Redding,   103   Fed.   914;    Cleary  v.   Skiffich,   28 

Colo.   362. 

3.  Bonner  v.  Meikle,  82  Fed.  697;  see  Wright  v.  Town,  ante. 

4.  Wight  v.  Dubois,  21  Fed.  693. 

5.  Rev.  Stats.,  §  2325;  Wight  v.  Dubois,  ante. 

6.  Id.;   see  §  24;   §  214-17. 

7.  Wight  v.  Dubois,  ante. 

8.  Id. 

9.  No.  Star  Lode.  28  L.  D.  41;  Cain  v.  Addenda  Co.,  29  L.  D. 

62;  Grand  Canyon  Co.  v.  Cameron,  ante;  Behrends  v. 
Goldstein,  1  Alaska  518. 

10.  Golden  Reward  Co.  v.  Buxton,  79  Fed.  868;  Whitman  v. 
Haltenhoff,  19  L.  D.  245.  See  preceding  note.  A  pro- 
test cannot  be  made  the  means  of  preserving  a  sur- 
face conflict  lost  by  failure  to  adverse  or  lost  by  the 
judgment  of  a  court  in  an  adverse  suit.  Min.  Reg., 
par.  53. 


274  PATENT    PROCEEDINGS.  [Ch.  31 

11.  See  Turner  v.  Sawyer,  ante;  Mery  v.  Brodt,  121  Cal.  332; 

Rockwell  v.  Graham,  9  Colo.  36;  Butte  H.  Co.  v.  Prank, 
25  Mont.  344;  see  Grand  Canyon  Co.  v.  Cameron,  ante; 
E.  J.  Ritter,  37  L.  D.  715.  An  adverse  claim  is  not  nec- 
essary to  protect  the  interests  of  a.  mining  claimant 
as  against  an  application  for  a  townsite  patent;  Silver 
Bow  Co.  v.  Clark,  5  Mont.  378;  the  owner  of  a  known 
lode  against  an  application  for  a  placer  patent;  Elda 
Co.  v.  Mayflower  Co.,  26  L.  D.  573;  Cape  May  Co.  v. 
Wallace,  27  L.  D.  676;  see  Cripple  Creek  Co.  v.  Mt.  Rosa 
Co.,  26  L.  D.  622;  see  Clipper  Co.  v.  Eli  Co.,  194  U.  S. 
220;  a  senior  patentee;  Iron  Co.  v.  Campbell,  135  U.  S. 
286;  Discovery  Placer  Claim  v.  Murry,  25  L.  D.  460;  No. 
Star  Lode, -ante;  and  in  some  cases  a  tunnel  site  claim- 
ant. Creede  Co.  v.  Uinta  Co.,  ante;  see  Back  v.  Sierra 
Nev.  Co.,  2  Ida.  (Hasb.)  420;  Hope  Co.  v.  Brown,  11 
Mont.  370;  nor  a  mill-site  claimant  against  an  appli- 
cation for  a  mining  claim.  Helena  Co.  v.  Dailey,  36 
L.  D.  144. 

12.  Rev.   Stats.,   §3226;    Min.   Reg.,   pars.   78-79.     The   adverse 

claim  may  be  verified  by  the  oath  of  any  fluly  author- 
ized agent  or  attorney  in  fact  of  the  adverse  claim 
cognizant  of  the  facts  stated.  It  is  only  by  the  rules 
of  the  land  department  that  he  is  required  to  make 
affidavit  that  he  is  agent  or  attorney,  and  to  accom- 
pany his  affidavit  with  proof  thereof.  A  failure  to 
comply  with  the  above  rule  will  not  defeat  the  suit 
brought  in  support  of  such  claim.  Brown  v.  Bond,  17 
L.  D.  150. 

13.  Min.  Reg.,  par.  81.     For  sufficiency  of  adverse,  see  Kinney 

v.  Van  Bokern,  29  L.  D.  460.  For  its  insufficiency  see 
McFadden  v.  Mt.  View  Co.,  26  L.  D.  530. 

14.  Min.  Reg.,  par.  82. 

15.  Anchor   v.    Howe,    50    Fed.    366;     Hoffman   v.    Beecher,    12 

Mont.  489;    see  Min.  Reg.,  par.  82. 

16.  Min.  Reg.,  par.  82. 

17.  Min.  Reg.,  par.  81. 

18.  Rev.  Stats.,   §2325;    Steves  v.  Carson,   42  Fed.   821;    Gillis 

v.  Downey,  85  Fed.  483;  Sam  McMaster,  2  L.  D.  706; 
Scott  v.  Maloney,  22  L.  D.  274;  see  Holman  v.  Cent. 
Mines  Co.,  34  L.  D.  568;  Nettie  Lode  v.  Texas  Lode,  14 
L.  D.  180;  Selma  Oil  Claim,  33  L.  D.  187;  Hunt  v.  Eureka 
Co.,  14  Colo.  451;  Kannaugh  v.  Quartette  Co.,  16  Colo. 
341. 

19.  Rev.  Stats.,  §2325;  Healey  v.  Rupp,  37  Colo.  25. 

20.  Bonesell  v.  McNider,   13   L.  D.   286;    Waterhouse  v.   Scott, 

13  L.  D.  718. 

21.  Holman  v.  Cent.  Mines  Co.,  ante. 

22.  Golden  Reward  Co.  v.  Buxton  Co.,  ante. 

23.  Bonesell  v.  McNider,  ante;  Draper  v.  Wells,  25  L.  D.,  550. 

24.  Tilden  v.  Intervenor  Co.,  1  L.  D.  572. 

25.  Rev.   Stats.,   §2325;    see   Morgan   v.   Antlers   Co.,    29   L.   D. 

114. 

26.  Gwillim  v.   Donnellan,    115   U.   S.   45;    Last  Chance  Co.   v. 

Tyler  Co.,  157  U.  S.   683. 

27.  Rev.    Stats.,    §2326;     Min.    Reg.,    pars.    85-86-87-88;     Rich- 

mond v.  Rose,  114  U.  S.  576;  Woods  v.  Holden,  26  L.  D. 
198;  see  Kannaugh  v.  Quartette  Co.,  ante.  An  amicable 
adjustment  of  conflicting  claims  between  adverse 
claimants  is  not  against  public  policy.  Specific  per- 


§  216]  THE  ADVERSE  SUIT.  275 

formance  of  such  an  agreement  will  be  enforced  by 
the  courts.  St.  Louis  Co.  v.  Mont.  Co.,  171  U.  S.  650; 
Murray  v.  White,  42  Mont.  423. 

28.  Waterhouse  v.  Scott,  ante. 

29.  Scott  v.  Maloney,  ante;  see  S'am.  McMaster,  ante;  Holman 

v.  Cent.  Mines  Co.,  ante. 

§  216.  The  Adverse  Suit.  The  adverse  suit  is  a 
continuation  of  the  proceedings  commenced  in  the 
land  office  by  the  filing  of  the  adverse  claim  therein.1 
The  court  determines  the  right  of  possession,2  but  not 
the  right  to  the  patent.3 

2.  SUBSEQUENT  PROCEEDINGS.     There  may  be  as 
many  different  judgments  as.  there  are  successful  par- 
ties to  the  suit.4     If  several  parties  are  found  to  be 
entitled  to  separate  and  different  portions  of  the  claim, 
each  party  may  pay  for  his  part  thereof  together  with 
the  proper  fees,5  file  a  certified  copy  of  the  judgment 
roll  6  and  the  certificate  and  description  by  the  sur- 
veyor-general as  in  uncontested  cases.7     Thereupon 
the  final  or  receiver's  receipt  issues.8 

3.  DUTY  OF  REGISTER.     The  register  being  satis- 
fied that  proper  proofs  have  been  filed,9  certifies  the 
proceedings  and  judgment  roll  to  the  Commissioner 
of  the  General  Land  Office.10 

4.  PROCEEDINGS  IN  GENERAL  LAND  OFFICE.    There- 
after patent  issues  in  conformity  to  the  judgment  of 
the  court,11  provided  the  officers  of  the  General  Land 
Office  are  satisfied  that  patent  should  issue  at  all.12 

See  §  20,  ante. 

1.  Wolverton  v.  Nichols,  119  U.  S.  485. 

2.  Alice  Placer,  4  L.  D.  314;    Clipper  Co.  v.  Eli  Co.,  33  L.  D. 

660;  s.  c.,  194  U.  S.  220;  see  Min.  Reg.,  par.  55.  A  court 
may  not  determine  whether  the  land  is  mineral  or  not. 
Wright  v.  Town,  13  Wyo.  497.  Nor  whether  or  not 
the  expenditure  necessary  for  patent  has  been  made. 
Wilson  v.  Freeman,  29  Mont.  470.  Nor  may  it  deter- 
mine which  of  the  parties  is  entitled  to  the  patent. 
Gruwell  y.  Rocca,  141  Cal.  417.  But  it  may  determine 
the  meaning  and  effect  of  certain  local  rules  and  cus- 
toms or  the  effect  of  state  statutes,  or  entertain  a 
question  of  fact  as  to  the  time  of  discovery  of  mineral 
or  the  location  of  the  claim  on  the  ground.  Shoshone 
Co.  v.  Rutter,  177  U.  S.  505.  The  judgment  of  the  court 
is  conclusive  only  between  the  parties  as  to  the  right 


276  PATENT    PROCEEDINGS.  [Ch.  31 

of  possession  and  not  as  between  them,  or  any  of 
them,  and  the  government  in  the  matter  of  the  pas- 
sage of  the  fee  simple  title.  Alice  Placer,  ante.  Nome 
&  Sinook  Co.  v.  Townsite,  34  L.  D.  276. 

3.  Deffebach  v.  Hawke,  115  U.  S.  392;  Orchard  v.  Alexander, 

157  U.  S.  372;  Perego  v.  Dodge,  163  U.  S.  160;  Alice 
Placer,  ante.  The  rejection  by  the  land  department  of 
an  application  for  patent  for  a  mining  claim  because 
of  failure  to  establish  the  presence  in  the  land  in- 
volved of  mineral  deposits  of  such  extent  and  value  as 
to  justify  the  issuance  of  patent  does  not  amount  to  a 
determination  that  the  location  upon  which  it  is  based 
is  invalid.  Clipper  Co.  v.  Eli  Co.,  ante;  see  §  214,  note 
51;  see  Min.  Reg.,  par.  108;  Parsons  v.  Venzke,  164  U. 
S.  89;  Hosmer  v.  Wallace,  47  Cal.  461. 

4.  Perego  v.  Dodge,  ante;    Wilson  v.  Freeman,  ante. 

5.  Rev.  Stats.,  §  2326. 

6.  Min.  Reg.,  par.  85.     As  to  evidence  necessary  to  establish 

proof  of  dismissal,  reJinquishment  or  abandonment  or 
that  no  suit  was  commenced  within  the  statutory  pe- 
riod, see  Id.,  pars.  86-87-88.  See  St.  Louis  Co.  v.  Mont. 
Co.,  171  U.  S.  650;  see,  also,  Roy  v.  Harney  Peak  Co.,  21 
S.  Dak.  140. 

7.  Rev.    Stats.,    §2326;    Min.    Reg.,    par.    85;    see    pars.    56-57. 

Lawrence  Donlan,  39  L.  D.  353. 

8.  See  Min.  Reg.,  par.   52. 

9.  Min.  Reg.,  par.  71. 

10.  Rev.  Stats.,  §  2326. 

11.  Id. 

12.  Perego  v.  Dodge,  ante;    see  note  3,  ante. 

CHAPTER  XXXII. 

TAXATION   OF  MINING  CORPORATIONS. 

§  220.  Federal  taxation  —  returns  —  filing  return  —  principal 
place  of  business — penalty. 

§  221.  Commissioners'  decisions — oil  wells — dry  wells — timber 
cutting — depreciation  of  minerals — exhaustion  of  de- 
posits— unearned,  increment — market  value  of  min- 
erals— determination  of  value — unit  value — record  of 
estimates — compilation  of  values — immaterial  ques- 
tion— excess  in  development — memorandum  of  exclu- 
sion— deduction  for  depreciation — royalties — leasehold 
investment— limited  deduction — no  deduction. 

§  222.  Undetermined  questions. 

§223.  State  taxation  —  graduated  tax  —  time  of  payment  — 
forfeiture — revival — penalty- — trustees — settlement  of 
affairs — popular  fallacy — consent  not  necessary. 

§  224.  Recent  legislation. 

§  220.  Federal  Taxation.  Under  the  Act  of  August 
5,  1909,1  which  has  been  declared  to  be  constitutional 
by  the  United  States  Supreme  Court,2  a  special  excise- 
tax  of  one  per  centum  upon  the  entire  net  income  from 
all  sources  is  imposed  on  mining  (and  other)  corpora- 
tions, etc.,  when  the  net  income  of  a  corporation  or 


§  221]  COMMISSIONER'S'  DECISIONS.  277 

quasi  corporation  may  have  exceeded  $5,000  during 
the  preceding  calendar  year. 

2.  EETUBNS.     Every  corporation,  not  specifically 
enumerated  in  the  law  as  exempt,  must  make  written 
return,  signed  and  verified  or  affirmed  by  its  president, 
vice-president,  or  other  principal  officer,  and  its  treas- 
urer, or  assistant  treasurer,  although  its  net  income 
during  such  year  may  not  have  exceeded  said  sum. 

3.  FILING  RETURN.    The  return  must  be  filed  with 
the  collector  of  internal  revenue,  or  deputy  collector, 
for  the  district  in  which  such  corporation  has  its  prin- 
cipal place  of  business,  within  the  United  States,  before 
the  first  day  of  March  succeeding  such  calendar  year. 

4.  PRINCIPAL  PLACE  OF  BUSINESS.    "Principal  place 
of  business"  is  held  to  mean  the  principal  office  where 
the  corporation  keeps  its  books  from  which  the  re- 
quired return  is  to  be  prepared  and  not  the  place 
where  the  operating  plant  is  located.3 

5.  PENALTY.    A  failure  to  file  such  return  within 
the  statutory  time  with  the  proper  officer  subjects  the 
defaulting  corporation  to  a  penalty  of  not  less  than 
$1,000  and  not  exceeding  $10,000.    A  false  or  fraudu- 
lent return  or  statement  is  a  misdemeanor.4 

1.  U.  S'.  Comp.  Stats.  Supp.  1909,  pp.  659-844-849,  §  38. 

2.  Flint  v.  Stone  Co.,  31  Sup.  Ct.  Rep.  342. 

3.  Synopsis  of  Dec.  T.  D.  1675,  issued  February  14,  1911. 

4.  U.  S.   Comp.   Stats.   Supp.,  pp.   659-844-849,  §  38. 

§  221.  Commissioner's  Decisions.  Mining  corpora- 
tions may  possibly  be  assisted  in  the  labor  of  making 
due  return  under  said  law  by  the  following  excerpts 
from  the  decisions  of  the  Commissioner  of  Internal 
Revenue  thereunder.1 

2.  OIL  WELLS.     Cost  of  drilling  new  wells  by  oil 
corporations  is  considered  betterments  and  additions 
to  the  capital  assets  of  the  corporation.2 

3.  DRY  WELLS.    The  expense  of  drilling  dry  wells 
may,  however,  be  charged  to  profit  and  loss.3 


278  TAXATION  OF  MINING  CORPORATIONS.       [Ch.  32 

4.  TIMBER  CUTTING.    The  mere  removal  of  timber 
by  cutting  from  timber  lands,  unless  the  timber  is 
otherwise  disposed  of  through  sales  or  plant  operations, 
is  considered  simply  a  change  in  form  of  assets.     If 
said  timber  is  disposed  of  through  sales  or  otherwise, 
it  is  to  be  accounted  for  in  accordance  with  regula- 
tions   governing    disposition    of    capital    and    other 
assets.4 

5.  DEPRECIATION  OF  MINERALS.    In  case  of  corpora- 
tions whose  business  consists  in   part  or  wholly  of 
mining,  producing,  and  disposing  of  deposits  of  na- 
ture (ores,  coals,  gas,  petroleum  and  sundry  minerals), 
the  conduct  of  such  business  will  be  understood  to 
comprehend  two  classes  of  gains  or  losses,  viz. : 

(a)  The  gain   or  loss  resulting  from  the  sale  of 
capital  assets,  i.  e.  either  the  increment  or  the  loss 
arising  through  possessing  over  a  period  of  time  the 
investment  in  the  same. 

(b)  The  trading  or  commercial  gain   attached  to 
the  conduct  of  the  industry,  the  employment  of  work- 
ing capital,  the  effort  and  risk  involved.5 

6.  EXHAUSTION  OF  DEPOSITS.    In  the  ascertainment 
of  net  income  deduction  will  be  allowed  for  deprecia- 
tion arising  from  exhaustion  of  deposits  of  ore,  min- 
eral, etc.,  and  for  depreciation  and  obsolescence  of  im- 
provements,  in  accordance  with  general  regulations 
respecting   depreciation   allowances,   on  the  basis   of 
the  original  capital  investment  cost  of  the  properties 
concerned  to  the  company  reporting.6 

7.  UNEARNED   INCREMENT.     A   further  deduction 
will  also  be  allowed  through  not  including  the  same 
at  all  in  the  item  of  gross  income  (item  3,  Form  637), 
for  the  unearned  increment  represented  in  such  prop- 
erties as  at  January  1,  1909,  which  will  be  determined 
in  general  as  follows:7 


§  221]  COMMISSIONER'S  DECISIONS.  279 

8.  MARKET  VALUE  OF  MINERALS.      An    estimate 
should  be  made  as  of  January  1,  1909,  of  the  fair 
market  value  at  that  date  of  the  minerals,  etc.,  in 
deposit.     This  estimate  should  be  formed  on  the  basis 
of  the  disposal  value  of  the  minerals  in  total  and  ex- 
clusive of  value  of  improvements  and  development 
work.    This  valuation  should  also  be  reduced  to  a  unit 
value — per  ton,  barrel,  etc.8 

9.  DETERMINATION  OF  VALUE.    Values*  as  aforesaid 
should  not  be  estimated  on  the  basis  of  the  assumed 
salable  value  of  the  output  under  current  operative 
conditions,   less   the   actual   cost   of   production,   be- 
cause, as  hereinbefore  stated,  the  selling  price  under 
such  conditions  comprehends  a  profit  both  for  carry- 
ing the  investment  in  minerals,  improvements,   and 
working   capital,   and   for  conducting  operations   in 
respect  of  production  and  disposal  of  product.     The 
value  to  be  determined  as  stated  must  be  on  the  basis 
of  the  salable  value  of  the  entire  deposit  of  the  aggre- 
gate units  of  minerals  considered  en  bloc  if  disposed 
of  in  that  form.    Nor  must  such  valuation  comprehend 
any  speculative  value  which  might  attach  to  a  sale 
of  the  minerals  en  bloc,  i.  e.  a  value  which  might  be 
obtained  on  the  ground  that  the  future  would  develop 
a  much  greater  reserve  of  mineral  deposits  than  were 
believed  to  exist  at  the  time  estimate  as  of  January  1, 
1909,  was  formed.    Any  value  of  this  latter  character 
would  attach  obviously  to  such  additional  reserves 
when  developed  in  future.9 

10.  UNIT  VALUE.     The  unit  value  as  of  January 
1,  1909,  ascertained  as  above  outlined,  would  indicate 
the  value  to  be  attached  at  that  date  to  the  capital 
assets  disposed  of  during  any  calendar  year  succeed- 
ing, and  should  be  used  in  determining  the  unearned 
increment  at  January  1,  1909,  which  may  be  excluded 
entirely  from  the  item  of  gross  income,  as  before  ex- 
plained, in  following  manner,  viz. : 


280  TAXATION  OF  MINING  CORPORATIONS.      [Ch.  32 

Value  at  January  1,  1909,  determined  in  manner  out- 
lined, of  minerals,  etc.,  which  may  be  removed  and 
disposed  of  in  any  year  subsequent  thereto,  $ 

Less  the  following: 

.  (a)  Proportion  of  depreciation  charge  applying  to 
exhaustion  of  minerals  disposed  of,  ascertained  as  first 
explained  herein  on  basis  of  original  cost,  $ 

(b)   Royalty   paid,   if   any,    on   minerals   disposed   of, 

Balance,  being  unearned  increment  at  January  1, 
1909,  to  be  excluded  from  gross-income  item10 

11.  EECOED  OF  ESTIMATES.     The  precise  detailed 
manner  in  which  the  estimate  of  value  of  minerals, 
etc.,  as  at  January  1,  1909,  shall  be  formed,  must 
naturally  be  determined  upon  by  each   corporation 
interested,  but  formal  record  of  such  estimates,  to- 
gether  with    all    sustaining   information,    should   be 
carefully  filed  so  as  to  be  readily  accessible  for  ref- 
erence.11 

12.  COMPILATION  OF  VALUES.    Values  as  stated,  as 
determined  at  January  1,  1909,  should  be  used  in 
compilation   in   all   subsequent   years'   excise-tax   re- 
turns.12 

13.  IMMATERIAL    QUESTION.     The   question    as   to 
whether  it  subsequently  develops  the  property  pos- 
sessed a  greater  quantity  of  mineral,  etc.,  reserve  than 
was  in  the  aggregate  estimated  as  of  January  1,  1909, 
is  immaterial.13 

14.  EXCESS  IN  DEVELOPMENT.     Any  excess  which 
may  be  developed  will  be  considered  as  possessing  the 
same  value  at  January  1,  1909,  as  that  which  then 
may  have  been  known  to  be  in  the  property.14 

15.  MEMORANDUM  OF  EXCLUSION.    Each  excise-tax 
return  (Form  637,  which  is  furnished  by  the  govern- 
ment), should  be  accompanied  with  memoranda  set- 
ting forth  the  extent  in  amount  of  the  exclusion  made 
from  the  item  gross  income  for  unearned  increment 
realized  during  the  year,  as  above  outlined.15 

16.  DEDUCTION    FOR    DEPRECIATION.     As    to    the 
amount  to  be  deducted  for  depreciation  (paragraph  2 


§  221]  COMMISSIONER'S  DECISIONS.  281 

preceding)  is  to  be  formed  on  basis  of  the  esti- 
mated reserve  of  minerals,  etc.,  it  follows  that  if  it 
develops  such  estimate  is  understated,  the  cost  invest- 
ment in  the  capital  asset  may  be  wholly  extinguished 
before  all  mineral  reserves  are  removed.  When  this 
is  reached,  further  deductions  for  exhaustion  of  min- 
erals should  be  discontinued,  but  in  such  event,  it  will 
be  noted,  the  allowance  for  unearned  increment  which 
is  to  be  excluded  entirely  from  gross  income  will  be 
correspondingly  increased.16 

17.  ROYALTIES.     In  case    of    corporations  leasing 
mines  and  paying  royalties  on  minerals,  etc.,  removed, 
the  royalties  paid  are  to  be  treated  as  expenses  and 
deducted  in  ascertaining  net  income,  as  provided  in 
general  regulations.17 

18.  LEASEHOLD    INVESTMENT.     Any   leasehold   in- 
vestment which  the  operating  corporation  may  have 
in  such  properties,  either  through  a  payment  origin- 
ally made  for  acquirement  thereof  or  for  improve- 
ments made  upon  the  property,  are  to  be  accounted  for 
in  accordance  with  regulations  governing  depreciation 
allowances  and  disposition  of  capital  assets.18 

19.  LIMITED  DEDUCTION.     In  respect  to  properties 
of  the  character  in  question  which  may  be  acquired 
by  a  corporation  after  January  1,  1909,  a  deduction 
will  be  allowed  only  as  to  depreciation  arising  from 
exhaustion  based  on  original  cost.19 

20.  No  DEDUCTION.     No  exclusion  from  gross  in- 
come can  be  made  for  unearned  increment,  as  profit 
arising  in  sale  of  such  capital  assets  applies  wholly  to 
the  period  subsequent  to  January  1,  1909.  20 

1.  Synopsis  of  Dec.  T.  D.  1675,  issued  February  14,  1911. 

2.  Id.,  par.   72. 

3.  Id. 

4.  Id.    par.  75. 


5.  Id. 

6.  Id. 

7.  Id. 

8.  Id. 


par.  80. 

par.  81. 

par.  82. 

par.  83. 


9.  Id. 
10.  Id.,  par.  84. 


282  TAXATION  OF  MINING  CORPORATIONS.       [Ch.  32 

11.  Id.,  par.  85. 

12.  Id. 

13.  Id. 

14.  Id. 

15.  Id.,  par.  86. 

16.  Id.,  par.  87. 

17.  Id.,  par.  88. 

18.  Id. 

19.  Id.,  par.  89. 

20.  Id. 

§  222.  Undetermined  Questions.  The  foregoing 
rulings  of  the  Commissioner  of  Internal  Revenue  seem 
to  be  based  upon  conditions  applicable  only  to  mer- 
cantile corporations.  Consequently  the  method  out- 
lined by  him  for  the  purpose  of  determining  the  gross 
income  of  mining  corporations,  particularly  in  the  case 
of  oil  mining  corporations,  is  exceedingly  difficult 
if  not  impossible  of  achievement. 

It  is  safe  to  say  that  under  the  conditions  existing 
in  oil  mining  no  person  can  conscientiously  make  the 
full,  and  in  some  instances  even  partial  return,  as  de- 
manded by  him. 

This,  particularly  in  relation  to  the  oil  "in  deposit," 
the  "fair  market  value"  of  the  oil  in  situ,  or  when,  or 
what  portion  of  the  expense  of  drilling  a  well  shall  be 
charged  to  profit  and  loss  or  not. 

§  223.  State  Taxation.  In  California  a  constitu- 
tional T  annual  license  tax,2  commencing  on  the  first 
day  of  July  and  including  the  thirtieth  day  of  June 
thereafter,  is  imposed  on  all  corporations,  not  specially 
exempt  by  law,3  which  are  doing  business  within  the 
state,  whether  incorporated  under  the  laws  of  the  state 
or  not.4 

2.  GRADUATED  TAX.     The  tax  is  based  upon  the 
amount  of  the  authorized  capital  stock  of  the  corpora- 
tion. 

3.  TIME  OP  PAYMENT.    The  payment  may  be  full 
or  fractional,  depending    upon    the    time  when  the 
articles  of  incorporation  are  filed  with  the  Secretary 


§223]  STATE  TAXATION.  283 

of  State  or  the  subsequent  existence  of  the  corpora- 
tion. The  tax  becomes  delinquent  on  the  first  day  of 
September  of  each  year. 

4.  FORFEITURE.     If  the  tax  and  a  penalty  of  $10 
are  not  paid  on  or  before  the  hour  of  4  o'clock  of  the 
thirtieth  day  of  November  of  each  year  the  charter 
of  a  delinquent  domestic  corporation  or  the  right  to 
do  business  within  the  state  of  a  delinquent  foreign 
corporation  is  forfeited.5 

5.  EEVIVAL.     A  corporation  may  be  rehabilitated 
within  the  time  allowed  by  law  upon  paying  the  license 
taxes  and  penalties  that  would  have  accrued  if  such 
corporation  had  not  forfeited  its  charter  or  right  to 
business  within  the  state.5a 

6.  PENALTY.    It  is  unlawful  for  either  a  domestic 
or  foreign  corporation,  which  may  not  have  paid  the 
tax  and  penalty  for  such  delinquency  to  thereafter 
transact   any  business  within  the  state.     Each  and 
every  person  who  exercises  any  of  the  powers  of  either 
class  of  corporations,  so  delinquent,  is  guilty  of  a 
misdemeanor   and   upon   conviction  thereof  shall  be 
punished  by  a  fine  of  not  less  than  $100  and  not  ex- 
ceeding $1,000,  or  by  imprisonment  in  the  county  jail 
not  less  than  50  days  nor  more  than  500  days,  or  by 
both  such  fine  and  imprisonment. 

7.  TRUSTEES.     The  directors  or  managers  in  office 
of  the  affairs  of  a  domestic  corporation  whose  char- 
ter has  been  forfeited,  or  of  a  foreign  corporation 
whose  right  to  do  business  within  the  state  has  been 
forfeited  are  deemed  to  be  the  trustees  of  the  corpora- 
tion and  stockholders  or  members  thereof.6 

8.  SETTLEMENT  OF  AFFAIRS.     Such  trustees  have 
full  power  to  settle  the  affairs  of  the  corporation  and 
to  maintain  or  defend  any  action  or  proceeding  then 
pending,  or    to  sue  or    be  sued    in  any    subsequent 
actions. 


284  TAXATION  OF  MINING  CORPORATIONS.       [Ch.  32 

9.  POPULAR   FALLACY.     It  is  popularly   supposed 
that  upon  the  forfeiture  of  the  charter  of  a  domestic 
corporation,  owning  real  estate,  the  legal  title  to  the 
latter  immediately  vests,  by  operation  of  law,  in  the 
stockholders  of  such  corporation,  as  tenants  in  com- 
mon.   On  the  contrary,  by  operation  of  the  provisions 
of  the  license  tax  law,  the  legal  title  then  vests  in  the 
trustees,    in    office,    with    full    power   of   disposition 
thereof;  subject  to  the  rights  of  the  stockholders  and 
creditors  of  such  corporation.7 

10.  CONSENT    NOT    NECESSARY.     Although    it    is 
sometimes  demanded  by  the  grantee,  the  consent  of  the 
stockholders,  holding  of  record  two  thirds  of  the  issued 
capital  stock  of   a   corporation,   as  required,   gener- 
ally, by  the  Civil  Code  8  is  not  essential  in  a  deed 
from  the  trustees  of  the  whole  of  the  property.     By 
reason  of  the  forfeiture  of  its  charter  the  corporation 
has  ceased  to  exist,  as  such.9 

1.  See  Ukiah  Co.  v.  Curry,  148  Gal.  256;  Kaiser  Co.  v.  Curry, 

155  Cal.  638;  Lewis  v.  Miller  &  Lux,  156  Cal.  93. 

2.  Cal.  Stats.  1909,  p.  454. 

3.  See  Lewis  v.  Curry,   156  Cal.   101. 

4.  Cal.   Stats.    1909,   p.   454. 

5.  See  American  Co.  v.  Colorado,  204  U.  S.  103. 
5a.  Cal.  Stats.  1911,  p.  1094. 

6.  Cal.  Stats.  1909,  p.   454;    see  C.   C.  §400;  Lewis  v.  Miller  & 

Lux,  ante. 

7.  See  Lewis  v.  Miller  &  Lux,  ante. 

8.  §  361a. 

9.  See  Lewis  v.  Miller  &  Lux,  ante. 

§  224.  Recent  Legislation.  A  late  Californian 
statute  provides  for  a  tax  upon  the  franchise  of  a  cor- 
poration, domestic  or  foreign,  when  the  latter  is  doing 
business  within  the  state.  The  amount  of  the  tax  is 
a  lien  upon  the  corporate  property.  This  tax  is  addi- 
tional to  the  "License  Tax"  1  but  carries  with  it  the 
same  penalties  as  well  as  additional  penalties  in  case 
of  delinquency  or  the  making  of  a  false  report.2 

1.  §  223,  ante. 

2.  Cal.   Stats.   1911,  p.   530. 


APPENDIX 

FORMS 


APPENDIX 


FORMS 

AFFIDAVITS. 

(See    Patent   Proceedings.) 
AFFIDAVIT   OF   ANNUAL    EXPENDITURE. 

Form  No.  1. 

State  of > 

County  of \  SS' 

being  first  duly  sworn,  deposes 

and  says,  that  at  least dollars'  worth  of 

labor  was  performed  (or  improvements  made)  be- 
tween the day  of ,  19 . . . . , 

and  the day  of ,  19. . ., 

upon  the Mining  Claim,  situate  in  the 

Mining  District,  County  of , 

State  of Such  expenditure  was  made 

by  or  at  the  expense  of the  owner  of 

said  claim,  for  the  purpose  of  complying  with  the  laws 

of  the  United  States  and  of  the  State  of 

pertaining  to  annual  assessment  work. 

Said  labor,  'so  performed,  (or  improvements  so 
made)  being  as  follows: 

(Describe  the  labor  or  improvements.) 


Subscribed  and  sworn  to  before  me  this . 
day  of ,19 


NON-MINERAL,  AFFIDAVIT.  287 

NON-MINERAL,   AFFIDAVIT. 

Form  No.  2. 

Department  of  the  Interior. 
United  States  Land  Office. 


.19. 


,  being  duly  sworn  according  to 

law,  deposes  and  says  that  he  is  the  identical 

who    is    an    applicant    for    government   title    to    the 

;  that  he  is  well  acquainted  with  the 

character  of  said  described  land,  and  with  each  and 
every  legal  subdivision  thereof,  having  frequently 
passed  over  the  same;  that  his  personal  knowledge  of 
said  land  is  such  as  to  enable  him  to  testify  under- 
standingly  with  regard  thereto;  that  there  is  not,  to 
his  knowledge,  within  the  limits  thereof,  any  vein,  or 
lode  or  quartz  or  other  rock  in  place,  bearing  gold, 
silver,  cinnabar,  lead,  tin,  or  copper,  or  any  deposit  of 
coal;  that  there  is  not  within  the  limits  of  said  land, 
to  his  knowledge,  any  placer,  cement,  gravel,  or  other 
valuable  mineral  deposit;  that  the  land  contains  no 
salt  spring,  or  deposits  of  salt  in  any  form  sufficient  to 
render  it  chiefly  valuable  therefor;  that  no  portion  of 
said  land  is  claimed  for  mining  purposes  under  the 
local  customs  or  rules  of  miners  or  otherwise ;  that  no 
portion  of  said  land  is  worked  for  mineral  during  any 
part  of  the  year  by  any  person  or  persons ;  that  said 
land  is  essentially  non-mineral  land,  and  that  his  ap- 
plication therefor  is  not  made  for  the  purpose  of 
fraudulently  obtaining  title  to  the  mineral  land,  but 
with  the  object  of  securing  said  land  for  agricultural 
purposes;  that  the  said  land  is  not  occupied  and  im- 
proved by  any  Indian,  and  that  his  post  office  address 
is 

Note. — See    Revised    Statutes    of    the    United    States,    Title 
LXX,   Crimes,  Chap.   4. 


288  FORMS— AFFIDAVITS. 

I  hereby  certify  that  the  foregoing  affidavit  was 
read  to  affiant  in  my  presence  before  he  signed  his 
name  thereto;  that  said  affiant  is  to  me  personally 
known  (or  has  been  satisfactorily  identified  before  me 

by ) ,  and  that  I  verily  believe  him 

to  be  a  credible  person  and  the  person  he  represents 
himself  to  be,  and  that  this  affidavit  was  subscribed 

and  sworn  to  before  me  at  my  office  in 

within  the land  district,  on  this 

day  of 19 


ARTICLES  OF  INCORPORATION. 
Form  No.  3. 

(As  Articles  of  Incorporation  must  conform  to  the  laws  of 
the  State  or  Territory  in  which  the  corporation  is  organized, 
only  the  "purposes"  of  a  mining  corporation  are  subjoined.) 

The  business,  objects  and  purposes  to  be  transacted, 
promoted  and  carried  on  by  this  corporation,  and  the 
purposes  for  which  it  is  formed  are  locating,  working, 
developing,  leasing,  buying,  selling,  and  otherwise 
dealing  in  mines,  mining  locations,  mining  claims, 
mining  rights,  mineral  deposits,  mill-sites,  tunnel- 
claims,  or  rights,  water  rights,  mining  plants, 
mining  dredges,  machinery,  or  works  used  in  connec- 
tion therewith.  Also,  to  engage  in  and  carry  on  the 
business  of  dredging  for  gold  and  other  mineral  sub- 
stances or  deposits,  in  water  or  upon  land.  Also,  to 
engage  in  and  carry  on  the  business  of  boring  for,  pro- 
ducing, owning,  holding,  buying  and  selling  petroleum 
oils,  natural  gas,  asphaltum,  bitumen,  and  other  hydro- 
carbon substances.  Also,  to  produce,  generate,  or 
otherwise  obtain  electric  light,  power  and  heat.  .  Also, 
to  engage  in  and  carry  on  the  business  of  crushing, 
smelting,  milling,  calcining,  refining,  dressing,  concen- 
trating, cyaniding,  generating,  manipulating,  and  pre- 
paring for  market  gold,  silver,  quicksilver,  lead,  tin, 


ARTICLES  OF  INCORPORATION.  289 

copper,  zinc,  iron,  or  other  ore,  coal,  slag,  petroleum 
oil,  metals,  and  mineral  substances  of  all  kinds;  and  to 
carry  on  any  other  reducing,  smelting,  or  metallurgical 
operations  which  may  seem  conducive  to  any  of  this 
corporation's  objects,  purposes  or  business.  Also,  to 
engage  in  and  carry  on  the  business  of  buying,  selling, 
manufacturing,  and  dealing  in  ores,  tailings,  slag, 
metals,  mining  plants,  machinery,  implements,  con- 
veniences, provisions  and  things  used  in  .connection 
with  the  business  of  this  corporation,  or  required  by 
the  workmen  and  others  employed  by  this  corporation. 

Also,  the  entering  into  partnerships,  or  into  any  ar- 
rangement for  sharing  profits,  union  of  interests,  co- 
operation, joint  adventure,  reciprocal  concession,  or 
otherwise,  with  any  person,  firm  or  corporation  carry- 
ing on  or  engaged  in,  or  about  to  carry  on  and  engage 
in  any  business  or  transaction  which  this  corporation 
is  authorized  to  carry  on,  or  engage  in  any  business  or 
transaction  capable  of  being  conducted  so  as  to  directly 
or  indirectly  benefit  this  corporation.  Also,  to  take 
and  acquire,  by  purchase  or  exchange,  or  other  lawful 
modes,  and  to  hold,  own,  deal  in,  sell,  and  otherwise 
dispose  of  the  capital  stock  or  bonds  of  other  corpora- 
tions. 

And,  in  general  to  do  and  perform  any  and  every 
other  act  or  acts,  or  things,  of  whatsoever  name  or 
nature,  incident  to,  growing  out  of,  or  connected  with 
the  purposes,  objects  and  business  for  which  this  cor- 
poration is  formed. 

CONTRACTS. 

AGREEMENT   TO    PURCHASE. 

Form  No.  4. 

(Precedent  in   Eisleben  v.   Brooks,   179   Fed.   86.) 

Memorandum  of  agreement  made  and  entered  into 
in  duplicate  at this day  of 


290  FORMS— CONTRACTS. 

,  191 . . ,  by  and  between 

and both  of ,  parties  of 

the  first  part,  and all  of , 

parties  of  the  second  part,  witnesseth :  That  the  parties 
of  the  first  part  are  the  owners  and  holders  of  options 
on  mineral  rights  and  are  in  process  of  acquiring  un- 
der purchase,  options,  and  leases,  other  mineral  rights 
in  all,  or  as  much  thereof  as  can  be  had  of  what  is 

known  as in counties  in  the 

state  of 

Money  is  needed  for  the  immediate  prospecting  of 
and  the  purchasing  of  said  mineral  rights  from  said 
first  parties,  and  the  parties  of  the  second  part  agree 
to  furnish  such  funds. 

The  parties  of  the  first  part  agree  to  convey  by 

proper  deeds  and  transfers  to of 

,  as  trustee,  or  his  successor  in  person  or 

corporation,  all  of  said  mineral  rights  now  owned  by 
them  or  whether  they  acquire  an  option  thereon,  or 
whether  they  acquire  them  by  purchase,  options  or 
leases  at  any  time  in  the  future.  The  said  parties  of 
the  second  part  agree  to  furnish  for  immediate  use  a 

drilling  fund  enough  to  sufficiently  drill  said , 

otherwise  to  accept  same  without  drilling,  and  as  said 
property  is  drilled  to  accept  for  said  trustee,  or  his 
successor,  the  mineral  rights  under  any  and  all  lands 

in  said which  are  now  and  in  the  future 

may  be  owned,  purchased,  optioned,  or  leased  by  said 
first  parties,  which  are  shown  by  ordinary  methods  of 

drilling  to  contain paying  to  said  first 

parties dollars,  cash  per  acre  for  the  same, 

upon  conveyance  to  said  trustee  or  successor  as  above. 

Upon  completion  of  said  drilling  and  purchasing,  or 
before  if  deemed  advisable,  the  parties  hereto  agree  to 
organize  a  corporation  for  the  division  of  and  further 
development  of  said  properties,  and  to  which  corpora- 
tion the  parties  of  the  second  part  hereby  subscribe 


AGREEMENT  TO  PURCHASE.  291 

and  agree  to  pay  in  the  sum  of 

dollars  cash,  and  which  organization  shall  be  duly  in- 
corporated under  the  laws  of  the  state  of , 

and  its  capital  stock  shall  be  issued  fully  paid  and 
non-assessable. 

The  capital  stock  of  said  corporation  shall  be  issued 
and  divided  as  follows:  The  said  parties  of  the  first 
part  are  to  receive of  said  stock  and  the  par- 
ties of  the  second  part  are  to  receive . . . . . of 

said  stock. 

It  is  understood  that  the  corporation  thus  formed 
shall  refund  to  said  second  parties  the  amount  of 
money  paid  out  by  them  to  the  first  parties  in  the  pur- 
chasing of  said  mineral  rights.  In  the  perfecting  of 
the  arrangements  under  this  contract,  it  is  considered 
and  understood  that  the  development  of  said  prop- 
erties on  an  extensive  scale  shall  be  carried  into  effect, 

and  that  no  less  than fully  equipped  modern 

plants  shall  be  put  into  operation  just  as 

soon  as  the  market  by  proper  advertising,  soliciting, 
etc.,  will  justify. 

The  situation  being,  however,  that  the  parties  of  the 
first  part  are  unable  to  furnish  capital  to  assist  in 
the  carrying  of  said  operation  into  effect,  it  is  hereby 
understood  and  agreed,  and  is  the  chief  consideration 
to  first  parties  in  this  contract,  that  said  second  parties 
shall  furnish  or  acquire  for  said  corporation  the 
necessary  capital  for  said  development,  and  to  protect 
first  parties'  interests  in  said  corporation  until  such 
time  as  said  corporation  shall  have  accumulated  suf- 
ficient working  capital  to  justly  protect  first  parties 
therein. 

In  witness  whereof  the  parties  hereto,  and  to  its 
duplicate,  set  their  hands  and  seals,  the  day  and  year 
first  above  written. 


292  FORMS— CONTRACTS. 


AGREEMENT  TO   SELL. 

Form  No.  5. 

(Precedent  in  Fulkerson  v.  Chisna  M.  &  I.  Co.,  122  Fed.  783.) 

This  instrument  made  and  entered  into  by  and  be- 
tween  ,  party  of  the  first  part,  and 

Company,  a  corporation,  party  of  the  second  part,  wit- 
nesseth  as  follows:  Whereas,  the  said  party  of  the 
first  part  by  a  certain  contract  heretofore  executed 
and  delivered,  has  agreed  to  sell,  assign,  transfer  and 
convey  to and the. min- 
ing claim  hereinafter  described,  for  value  received, 
and  for  certain  considerations  expressed  in  said  con- 
tract, which  contract  has  been  duly  assigned  to  the 
said  party  of  the  second  part,  said Com- 
pany, now,  therefore,  in  consideration  of  the  said  con- 
tract and  for  a  valuable  consideration  in  hand  paid  to 
the  said  party  of  the  first  part  by  the  said  party  of 
the  second  part,  the  said  party  of  the  first  part  hereby 
sells  to  the  said  party  of  the  second  part  that  certain 
mining  claim  described  as  follows: 

(Description) 

and  hereby  agrees  to  execute  a  lawful  deed  conveying 
said  property  to  the  said  party  of  the  second  part  and 

to  place  said  deed  in  the  hands  of to  be  held 

by  him  in  escrow  and  to  be  by  him  delivered  to  the 
said  party  of  the  second  part.  said. Com- 
pany, at  any  time  on  or  after  the day  of 

,  19 . . . . ,  provided,  on  said day 

of ,  19 . . . ,  the  said  party  of  the  second 

part  has,  on  its  part,  performed  the  terms  and  condi- 
tions of  the  above  mentioned  contract  and  required 

therein  to  be   performed   by   said and 

,  their  heirs  and  assigns,  in  so  far  as  said 


COMPROMISE  OP  ADVERSE   CLAIM.  293 

terms  and  conditions  are  subject  to  be  performed  prior 

to  the  said day  of ,  19 

In  witness  whereof  the  parties  hereto,  and  to  its 
duplicate,  have  set  their  hands  and  seals  this,  the 
day  of ,19 

COMPROMISE    OF   ADVERSE    CLAIM. 

Form  No.  5a. 

(Precedent  in  St.  Louis  Co.  v.  Montana  Co.,  171  U.  S.  650.) 

The  terms  of  the  agreement  made  this day 

of ,  19 . . . ,  by  and  between ,  the 

party  of  the  first  part,  and ,  the  party  of 

the  second  part,  are  as  follows : 

That  in  consideration  of  the  compromise  and  settle- 
ment of  the  adverse  suit  brought  by  said  party  of  the 

part  in  the Court  of  the , 

to  determine  the  right  of  possession  to  the .......... 

mining  claim,  as  mentioned  and  described  in  the  com- 
plaint in  said  suit,  and  also  of  the  withdrawal  of  the 
adverse  claim  upon  which  said  suit  is  based,  and  also 
of  settling  and  agreeing  upon  the  boundary  line  be- 
tween said mining  claim  and  the min- 
ing claim  of  said  party  of  the part,  the  said 

party  of  the part  hereby  agrees  and  binds 

within days  after  the  issuance  of 

the  patent  as  applied  for  to  make,  execute  and  deliver 

to  said  party  of  the part,  or assigns 

a  good  and  sufficient  deed*  of  conveyance  for 
(Description) 

That  thereupon  the  said  party  of  the part 

shall,  immediately  dismiss  said  suit  and  withdraw  said 
adverse  claim. 

That  during  the  pendency  of  said  patent  proceed- 
ings, or  during  any  of  the  times  herein  provided  for 

the  said  party  of  the part  shall  not  make, 

nor  cause  to  be  made,  any  motion  in  said  court  for  the 
dismissal  of  said  suit,  for  want  of  prosecution,  nor 
at  all. 


294  FORMS— CONTRACTS. 

GRUB    STAKE   CONTRACT. 

Form  No.  6. 

(Precedent  in  Morrow  v.  Matthew,  10  Idaho  423.) 

The  terms  of  the  agreement  made  this day 

of ,  19. . .,  between ,  of 

,  State  of ,  the  party  of 

the  first  part,  and ,  of  the  same  place, 

the  party  of  the  second  part,  are  as  follows: 

That  the  party  of  the  first  part  shall  forthwith  pro- 
ceed to ,  in  the  State  of , 

and  for months  from  the  date  hereof  devote 

his  time,  labor  and  skill  in  prospecting  for  mineral 
deposits  therein,  and  when  found  he  shall  locate  min- 
ing claims  thereon  subject  to  location  under  the  laws 

of  the  United  States,  the  State  of ,  and 

the  local  rules,  regulations  and  customs  of  miners  in 
force  in  the  mining  district  in  which  such  deposits 
may  be  situated  for  the  joint  use  and  benefit  of  the 
said  parties  hereto. 

That  the  said  parties  hereto  shall  be  equally  inter- 
ested in  each  and  every  mining  claim  so  discovered, 
located,  or  which  may  be  acquired  in  any  manner  by 
said  party  of  the  first  part  within  said  territory  dur- 
ing the  time  aforesaid. 

That  the  said  party  of  the  second  part  shall,  from 
time  to  time  and  upon  his  demand,  furnish  the  said 
party  of  the  first  part  with  such  supplies,  tools  and 
instruments  and  other  things  of  necessity  incident  to 
such  prospecting,  locating  and  acquiring  mining 
claims  as  said  party  of  the  first  part  shall  properly 
require  in  the  keeping  of  this  agreement  on  his  part. 

In  witness  whereof,  the  said  parties  hereto  have 
hereunto  and  to  its  duplicate,  set  their  hands  the  day 
.and  year  first  above  written. 


CONTRACT  WITH  MINING  ENGINEER.  295 

CONTRACT  WITH  MINING  ENGINEER. 

Form  No.  7. 

(Precedent  in  Wishoh  v.  Great  Western  Co.,   29  Wash.   355.) 

This  agreement,  made  and  entered  into  this 

day  of ,  19 . . . ,  between ,  of 

in    the    County  of in  the 

State  of ,  the  party  of  the  first  part,  and 

,  of in  the  County  of 

and  State  of ,  the  party  of  the  second 

part,  Witnesseth :  That  whereas,  the  said  party  of 
the  first  part  is  a  mining  engineer  and  expert,  whose 
opinions  and  statements  concerning  mines  and  mining 
properties  are  of  value  and  are  highly  regarded  by 
those  who  are  purchasing  mines  and  mining  property ; 
and 

Whereas,  the  said  party  of  the  second  part  is  desir- 
ous of  selling  and  disposing  of  those  certain  mines 
and  mining  property,  of  which  the  said  party  of  the 
second  part  is  the  owner,  hereinafter  described;  and 
is  desirous  of  employing  the  said  party  of  the  first 
part  in  reporting  on  the  said  property,  so  as  to  have 
his  professional  recommendation,  or  other  report, 
upon  the  same,  as  the  property  may  warrant.  Now, 
therefore,  this  Agreement  witnesseth : 

That  for  and  in  consideration  of  the  services  ren- 
dered and  to  be  rendered  by  the  said  party  of  the  first 
part  in  the  sale  of  the  said  mines  and  mining  prop- 
erty, which  is  now  pending  or  on  any  sale  or  sales 
which  may  be  made  by  and  through  the  report  upon 
said  property,  by  the  said  party  of  the  first  part,  at 

any  time,  or  to  any  person  whomsoever  of  the 

group  or  property,  consisting  of  the and 

lode  mining  claims,  situate  at 

Mining  District,  County  of and  State  of ; 


296  FORMS— CONTRACTS. 

and  in  consideration  of  the  report  of  the  said  party 
of  the  first  part,  or  any  part  of  the  said  report,  or 
any  map,  writing,  printed  matter,  or  other  recom- 
mendation, or  statement,  made  by  said  party  of  the 
first  part,  for  and  on  account  of  the  sale,  which  is 

now  pending,  for  the  price  of dollars,  or 

any  sale  or  sales  hereafter  to  be  made  by  and  through 
the  said  report,  or  any  part  thereof,  of  the  said  prop- 
erty, the  said  party  of  the  second  part  covenants  and 
agrees,  to,  and  with  the  said  party  of  the  first  part 
that  he  will  pay  him,  said  party  of  the  first  part,  or 

his  heirs  or  assigns,  the  full  sum  of dollars, 

to  be  paid  immediately  upon  the  payment  of  the  pur- 
chase money.  And  it  is  further  agreed  and  understood 
that  the  expenses  incurred  in  making  the  trip  from 

to  the  said  property  and  return,  and  during 

the  examination,  assays,  maps,  etc.,  by  the  party  of  the 
first  part  shall  be  repaid  to  him  by  the  said  party  of 
the  second  part  at  the  time  and  times  said  expense 
is  incurred.  And  the  said  party  of  the  first  part 
promises  and  agrees  to  and  with  the  said  party  of 
the  second  part  that  he  will  use  all  his  professional 
skill  and  will  make  a  full  and  complete  report  of  the 
said  mines  and  mining  property  and  will  expert  the 
same,  and  will  do  all  in  his  power  to  bring  about  a 
fair  and  honest  sale  of  the  said  property  upon  the 
terms  and  conditions  hereinbefore  set  forth. 

In  witness  whereof,  the  said  parties  hereto  have 
hereunto  and  to  its  duplicate,  set  their  hands  the  day 
and  year  first  above  written. 


OIL  WELL  DRILLING.  297 

OIL  WELL  DRILLING  CONTRACT. 

Form  No.  8. 

(Precedent  in  Cook  v.  Columbian  Co.,  144  Cal.  670.) 

This  agreement,  made  and  entered  into  this 

.  day  of ,  19. . .,  between ,  of 

,  the  party  of  the  first  part,  and 

,  of ,  the  party  of  the  second 

part,  Witnesseth: 

That  the  party  of  the  second  part  will  furnish  at 
his  own  cost  and  expense  all  the  machinery,  tools,  par- 
aphernalia and  materials  of  all  kinds,  including  labor, 
fuel,  water,  and  any  and  all  things  of  whatsoever 
kind  and  nature  that  may  be  necessary  and  needful 
(except  casing,  pipe  and  shoes)  to  properly  perform 

the  work  of  drilling  or  boring  not  less  than 

feet  of  hole  or  wells,  and  to  drill  or  bore  the  same  at 
any  one  or  more  places  on  the  following  described 

land  situate,  lying  and  being  in  the  County  of , 

State  of ,  and  more  particularly  described 

as  follows,  to  wit: 

(Description) 

as  may  be  desired  and  designated  by  the  party  of  the 
first  part,  for  the  agreed  price  per  foot  sunk,  as  shown 
and  set  forth  in  the  following  scale  of  prices,  at  dif- 
ferent depths  up  to. feet,  and  in  accord- 
ance with  the  further  terms  and  conditions  herein 

Note. — Under  the  provisions  of  an  Act  to  prevent  injury 
to  oil,  gas  or  petroleum-bearing  strata  or  formations  by  the 
penetration  or  infiltration  of  water  therein,  it  is  provided  in 
California  that  any  well  drilled  and  abandoned  in  violation 
of  the  terms  of  the  statute  is  a  public  nuisance  and  may  be 
abated  by  appropriate  action  of  the  board  of  supervisors  of 
the  county.  The  expenses  so  incurred  are  a  charge  against 
the  owner  of  the  well  and  a  lien  upon  the  well.  Interfer- 
ence with  official  action  is  a  misdemeanor.  Cal.  Stats.,  1909, 
p.  586. 

For  capping  of  wells  to  prevent  wasteful  escape  of  natural 
gas  into  the  atmosphere  see  §  121a,  ante. 


298  FORMS— CONTRACTS. 

contained.  Provided,  however,  that  in  case  the  drill- 
ing of  any  well  shall  be  stopped  by  the  party  of  the 
first  part  for  any  cause  after  it  has  been  begun,  that 
the  party  of  the  first  part  will  pay  the  net  cost  of 
moving  the  drilling  outfit  to  any  other  place  on  the 
said  property  where  another  well  is  to  be  started,  in 
addition  to  the  amount  earned  for  the  number  of  feet' 
sunk  in  accordance  with  the  said  scale  of  prices  per 
foot  and  that  should  work  be  stopped  on  any  well, 

for  any  cause,  after  a  depth  of feet  has  been 

sunk,  then  the  said  party  of  the  second  part  shall 
move  the  rig  at  his  own  cost  and  expense  to  the  place 
designated  by  the  party  of  the  first  part.  That  in  case 
of  abandonment  of  any  well  or  wells  for  any  cause 
the  party  of  the  second  part  will  pull  and  remove,  in 
a  careful  manner,  all  casing,  pipe  and  fittings  used 
in  said  well  or  wells  that  can  be  got  out  by  a  reason- 
able and  faithful  effort  by  the  use  of  all  appliances 
and  tools  ordinarily  used  in  performing  such  work. 

That  all  casing,  pipe  and  shoes  of  the  proper  sizes 
necessary  to  be  used  in  the  well  or  wells  will  be  fur- 
nished and  delivered  on  the  ground  by  the  party  of 
the  first  part  and  shall  be  of  such  sizes  as  such  party 
may  select,  and  the  same  shall  be  properly  inserted 
and  used  in  the  wells  by  the  party  of  the  second  part 
and  carried  to  the  bottom,  if  possible  without  dimin- 
ishing the  size  except  in  cases  where  it  is  found  abso- 
lutely unavailable  after  the  use  of  under-reamers  and 
other  appliances,  as  may  be  necessary  and  proper  for 
keeping  the  whole  in  proper  shape. 

That  in  case  a  body  of  asphaltum  be  encountered 
at  any  considerable  depth  and  it  is  found  impossible 
after  a  faithful  and  reasonable  effort  so  to  do  that 
it  cannot  be  drilled  through  nor  penetrated  by  the 
use  of  any  of  the  known  tools  and  appliances,  then 
the  said  well  will  be  considered  as  completed  and  a 
settlement  made  in  full  for  the  depth  drilled  accord- 


OIL  WELL,  DRILLING.  299 

ing  to  the  said  scale  of  prices;  provided,  however, 
that  the  party  of  the  first  part  shall  have  full  and 
free  right  and  privilege  to  use  and  operate  the  ma- 
chinery and  outfit  of  the  party  of  the  second  part 
at  his  own  cost  and  expense  for  a  period  not  to  exceed 

,  or  until  satisfied  that  the  hole  cannot 

be  sunk  any  deeper. 

That  in  case  oil,  gas  or  asphaltum  shall  be  found 
at  any  depth  in  any  well  and  the  party  of  the  first 
part  shall  elect  to  stop  drilling  in  such  well,  the  party 
of  the  second  part  shall  properly  test  the  well  and 
leave  the  same  in  condition  ready  for  the  pump  or 
other  working  appliance  before  moving  the  rig  and 
outfit  away. 

It  is  understood  by  and  between  both  parties  hereto 

that  this  contract  is  for  a  total  of feet  of 

hole  or  wells,  and  that  the  party  of  the  second  part 
agrees  to  put  down  any  one  hole  to  a  total  depth  of 

feet,  if  the  ground  is  such  that  it  can 

possibly  be  done,  by  reasonable  effort,  or  that  he  will 
stop  the  drilling  of  any  well  at  any  depth,  as  directed 
by  the  party  of  the  first  part  and  in  accordance  with 
the  said  scale  of  prices  per  foot  sunk,  and  the  terms 
and  conditions  herein  contained. 

That  the  party  of  the  first  part  will  pay,  or  cause 
to  be  paid  to  the  party  of  the  second  part  the  amount 
earned  for  each  foot  of  hole  sunk  in  accordance  with 
the  said  scale  of  prices  at  times  and  as  follows,  to  wit : 

An  advance  sum  of dollars,  when  the  rig 

and  outfit  are  on  the  ground  and  ready  to  commence 

the  work  of  drilling ; per  cent  of  the  amount 

earned  as  per  scale  when  the  well  has  been  sunk  to  a 

depth  of feet  and  a  like per 

cent  of  the  amount  earned  at  the  completion  of  each 

feet  until  the  well  is  either  completed  or 

abandoned,  or  the  work  stopped  by  the  party  of  the 
first  part,  when  the  balance  in  full  shall  be  paid,  after 


300  FORMS— CONTRACTS. 

deducting  the  said  advance  payment  o  ? 

dollars. 

Done  in  duplicate,  the  day  and  year  first  above 
written. 

OPTION. 

Form  No.  9. 

This  agreement,  made  the day  of , 

19 . . ,  between ,  a  corporation  organized 

and  existing  under  and  by  virtue  of  the  laws  of  the 

State  of ,  the  party  of  the  first  part,  and 

,  of  the  County  of . . . ,  State 

of ,  the  party  of  the  second  part,  Wit- 

nesseth:  That  the  party  of  the  first  part,  in  consid- 
eration of . . ,  will  sell  to  the  party  of  the 

second  part  all  those  certain  mining  claims  and  water 

rights  situate,  lying  and  being  within  the 

Mining  District,  County  of ,  State  of 

,  more  particularly  bounded  and  de- 
scribed as  follows,  to  wit: 

(Description.) 

upon  the  following  terms  and  conditions,  to  wit : 

The  party  of  the  first  part  will  cause  to  be  depos- 
ited in  escrow  in  the  Bank  of in  the  County 

of ,  State  of ,  at  the  time  of 

the  execution  of  this  instrument,  its  deed  in  writing, 
good  and  sufficient  in  the  law,  to  the  party  of  the  sec- 
ond part,  or  his  assigns,  of  each  and  all  of  the  prop- 
erties hereinbefore  mentioned  and  described. 

The  party  of  the  second  part  is  hereby  granted  an 
option  to  purchase  all  of  said  mining  claims  and  water 

rights  for  the  sum  of dollars,  subject  to 

the  terms  and  special  exceptions  and  conditions  hereof, 
in  the  following  manner:  That  the  said  party  of  the 
second  part  shall  pay  in  to  the  credit  of  the  said  party 
of  first  part  at  said  Bank  of ,  on  or  before 


OPTION.  301 

12  o'clock  noon  of  each  day  specified,  to  wit:  on  or 

before  the day  of ,  19. ., per  cent 

of  the  said  purchase  price  of  said  properties  and  the 

balance  of  said  purchase  money  in equal 

payments  of per  cent  of  the  whole  every 

months  thereafter. 

It  is  hereby  agreed  that  all  of  the  foregoing  pay- 
ments shall  be  made  in  United  States  gold  coin  of  the 
present  standard  of  value. 

It  is  hereby  agreed  that  the  party  of  the  second 
part  shall  have  the  right  to  anticipate  the  payments 
of  the  entire  unpaid  purchase  price  of  said  properties 

at  said  Bank  of ,  but  in  the  event  that  he 

exercises  such  right  he  shall  pay  all  of  the  unpaid 
installments  in  full;  provided,  that  he  be  allowed  an 

amount  equal  to per  cent  per  annum  on 

each  unpaid  installment  for  the  length  of  time  for 
which  such  installment  is  thus  anticipated;  and  pro- 
vided further,  that  such  payment  or  payments,  or  any 
part  thereof,  is  not  derived  from  the  proceeds  of  said 
properties,  or  any  part  thereof;  and  provided ' fur- 
ther, that  if  the  party  of  the  second  part  shall  exer- 
cise the  option  conferred  hereby  to  anticipate  deferred 
payments,  he  shall  give  notice  in  writing  to  the  party 
of  the  first  part  of  his  intention  to  exercise  such  option 

days  prior  to  the  time  he  shall  be  allowed 

to  exercise  the  same. 

It  is  further  agreed  that  during  the  period  from 
the  date  hereof  until  the  final  payment  of  the  said 
entire  purchase  price  of  said  properties  is  made,  said 
party  of  the  first  part  shall  remain  in  the  entire  pos- 
session and  control  of  the  property  hereinbefore  par- 
ticularly mentioned  and  described,  except  that  upon 

the  making  of  said  first  payment  of  said. per 

cent,  of  said  purchase  price  of  said  properties  the 
said  party  of  the  second  part  may,  and  shall  have 
the  right  to  enter  into  and  take  possession  of  all  and 


302  FORMS— CONTRACTS. 

singular  said  premises  and  property,  and  commence 
work  and  make  improvements  thereon,  and  operate, 
mine  and  extract  the  mineral  from  said  premises  and 
property.  That  in  order  that  said  party  of  the  first 
part  may  be  fully  protected  hereunder,  it  is  hereby 
agreed  that  all  work  done  and  improvements  made 
by  said  party  of  the  second  part  upon  said  premises 
and  property  under  the  terms  hereof  shall  be  done 
in  a  miner-like  and  proper  manner  to  enable  said 
premises  to  be  carefully  operated,  and  so  that  the  min- 
eral therein  contained  may  be  extracted  in  an  eco- 
nomical and  miner-like  manner,  and  all  of  said  work 
done  and  improvements  made  shall  be  done  or  made 
under  the  supervision  of  said  party  of  the  first  part 
and  with  its  consent,  and  to  that  end  it  is  hereby 

agreed  that  Mr ,  its  superintendent,  or 

his  successor  in  office,  shall  have  the  right  to  finally 
pass  upon  and  approve  of,  or  reject,  any  plan  or  por- 
tion of  a  plan  of  the  party  of  the  second  part  for  the 
working  and  improvement  of  said  premises  and  prop- 
erty; or  any  part  thereof,  or  of  any  work  or  ditches  or 
pipe  lines  which  may  be  connected  therewith.  That 
said  party  of  the  second  part  hereby  agrees  to  dis- 
pose of  the  proceeds  of  the  working  of  said  premises 
as  obtained  or  received  by  him  from  time  to  time  as 
follows:  All  of  such  proceeds,  less  the  actual  cost  of 
extraction,  reduction  or  refining,  hauling  and  freight 
charges,  shall  be  applied  as  a  payment  upon  the  un- 
paid portion  of  the  next  payment  falling  due  here- 
under upon  the  purchase  price  of  said  mining  claims 
and  water  rights. 

It  is  understood  and  agreed  that  in  consideration  of 
the  premises,  that  said  party  of  the  second  part, shall 

within days   from   the  date   hereof  enter 

upon  said  premises  by  his  duly  accredited  agent  or 
agents,  mining  engineer  or  mining  engineers,  mining 
expert  or  mining  experts,  together  with  proper  assist- 


OPTION.  303 

ants  and  paraphernalia  constituting  a  proper  and 
sufficient  outfit  therefor,  and  in  a  proper  and  miner- 
like  manner,  and  at  his  own  cost  and  expense,  make 
a  proper  examination  and  test  of  the  mineral  value 
of  said  premises  and  properties,  holding  and  keeping 
the  same,  and  all  thereof,  free  and  clear  of  all  costs, 
charges  and  liens  for  such  examination  and  working. 

It  being  further  understood  and  agreed  that  the 
said  party  of  the  second  part  shall  keep  th,e  party  of 
the  first  part  fully  informed  of  said  work,  and  per- 
mit the  said  party  of  the  first  part  at  all  times,  and 
at  any  time,  to  inspect  such  work,  and  any  and  all 
thereof;  and  it  is  further  agreed  that  in  furtherance 
of  such  examination  and  test  said  party  of  the  second 
part  may  use  and  enjoy  the  Improvements  now  placed 
upon  said  premises  and  properties  together  with  such 
personal  property  now  thereon  as  may  be  necessary 
or  proper  in  the  making  of  such  examination  and  test ; 
but  in  the  event  that  said  work  is  not  being  done  to 
the  satisfaction  of  the  said  party  of  the  first  part,  it 
shall  have  the  right  and  it  is  hereby  given  the  right 
to  cause  all  work  being  done  by  said  party  of  the  sec- 
ond part  to  immediately  cease. 

It  being  further  distinctly  understood  and  agreed 
that  upon  the  failure  on  the  part  of  the  party  of  the 
second  part  to  enter  upon  said  premises  and  proper- 
ties within  the  time  and  in  the  manner  lastly  herein- 
before aforesaid  this  option"  and  all  rights  and  privi- 
leges thereunder  shall,  upon  and  at  the  expiration  of 

said days  be  instantly  forfeited,  cancelled 

and  annulled. 

In  the  event  that  such  examination  is  made  within 
the  time  hereinbefore  specified,  and  that  thereafter 
the  said  party  of  the  second  part  shall  elect  not  to  pur- 
chase said  premises  and  properties  under  the  terms 
hereof,  he,  the  said  party  of  the  second  part  shall 
deliver  to  the  said  party  of  the  first  part,  free  from 


304  FORMS— CONTRACTS. 

all  cost,  charges  and  expense  to  it  whatsoever,  copies 
of  all  data,  plans,  field  notes,  analyses,  samples,  photo- 
graphs and  other  determinations  and  reports  that  he, 
the  said  party  of  the  second  part,  shall  have  made  or 
caused  to  be  made,  or  otherwise  obtained,  in  and  about 
and  by  reason  of  said  examination  and  test,  the  same 

to  be  so  delivered  within days  after  this  option 

may  have  been  concluded  under  the  terms  hereof. 

In  the  event  that  the  said  party  of  the  second  part 
does  not  purchase  said  premises  and  properties,  in 
accordance  with  the  terms  hereof,  or  shall  default  in 
any  payment  herein  provided  for,  or  this  option  be 
revoked  for  legal  cause  by  the  said  party  of  the  first 
part,  any  and  all  improvements  placed  upon  said 
hereinabove  described  premises  and  properties  by  the 
said  party  of  the  second  part  shall  thereupon  imme- 
diately become  and  be  the  property  of  said  party  of 
the  first  part,  without  any  cost,  charge  or  expense  to 
it  whatsoever  therefor. 

It  is  hereby  further  agreed  that  if  at  any  time  the 
party  of  the  second  part  shall  fail  to  make  any  pay- 
ments herein  provided  for  upon  the  said  purchase 
price  of  said  premises  and  properties  at  the  time  and 
place  herein  specified  for  the  same  to  be  made, 
the  rights  of  the  party  of  the  second  part  under 
this  option  shall  immediately  cease  and  determine, 
and  the  payments  which  shall  have  been  made  by  him 
therefor  shall  be  applied  as  follows : 

Whereas,  the  damage  to  the  present  or  future  value 
of  the  several  properties  affected  by  this  agreement 
by  a  failure  to  purchase  the  same  as  herein  provided, 
and  the  damage  which  may  be  occasioned  to  the  same 
during  the  existence  of  this  option  prior  to  any  breach 
thereof  by  the  party  of  the  second  part,  cannot  be 
estimated  or  established  in  a  court  of  justice  by  rea- 
son of  the  difficulty  of  establishing  hereafter  the  pres- 
ent appearance,  prospects  and  apparent  value  of  said 


OPTION.  305 

hereinabove  described  mining  claims  and  the  changes 
in  the  appearance,  prospects  and  value  of  the  same 
at  the  time  of  such  breach,  and  other  difficulties  and 
the  consequent  damage  resulting  thereby  to  the  party 
of  the  first  part; 

It  is  hereby  agreed  that  all  payments  and  expendi- 
tures which  shall  have  been  made  under  this  option 
by  the  party  of  the  second  part  upon  said  premises 
and  properties,  or  upon  any  part  thereof,  shall  be 
deemed  to  be  liquidated  and  assessed  damages  caused 
by  the  said  party  of  the  second  part  to  the  party  of 
the  first  part  by  virtue  of  his  failure  to  comply  with 
and  perform  the  conditions  of  this  option  and  shall 
remain  the  property  of  the  party  of  the  first  part ;  and 
the  party  of  the  second  part  hereby  releases  all  claim 
thereto. 

The  party  of  the  first  part  hereby  agrees  that  it  will 
not  act  nor  consent  to  the  doing  of  any  act  by  it  tend- 
ing to  alienate  or  encumber  said  premises  and  prop- 
erties, or  any  part  thereof,  hereinabove  described  or 
which  will  prevent  the  party  of  the  second  part  (upon 
the  completion  by  him  of  all  the  conditions  herein  pro- 
vided to  be  performed  by  him)  from  acquiring  the 
same  rights  therein  as  are  now  possessed  by  the  party 
of  the  first  part. 

The  said  party  of  the  second  part  hereby  covenants 
and  agrees  to  hold  harmless  the  party  of  the  first  part 
hereto  as  against  all  liens  and  claims  of  mechanics  for 
labor  done  and  materials  furnished  under  this  option, 
and  hereby  grants  to  said  party  of  the  first  part 
through  its  duly  accredited  agent,  to  be  present  at  the 
payment  and  ascertain  that  all  wages  of  employees 
of  the  party  of  the  second  part,  and  all  sums  of  money 
due  to  contractors  or  subcontractors  under  the  said 
party  of  the  second  part,  if  any,  and  all  sums  of 
money  due  for  materials  furnished,  are  paid. 

The  party  of  the  second  part  agrees  to  have  each 


306  FORMS— CONTRACTS. 

and  every  man  employed  by  him  and  working  upon 
said  premises  and  properties  and  each  and  every  per- 
son, company  or  corporation  from  whom  he  buys 
material,  sign  a  contract,  as  follows : 

"In  consideration  of  my  being  employed  by 

or  of purchasing  materials  of 

me,   I  hereby  covenant  and  agree  to  look  alone  to 

said for  my  pay,  and  I  hereby  waive  all 

rights  or  claims  that  I  may  have  in  law  or  in  equity 
against  the  properties,  or  any  one  of  them,  upon 
which  said  labor  is  bestowed  or  to  which  said  material 
is  furnished." 

(All  blanks  to  be  properly  filled.) 

That  upon  a  failure  in  any  instance  to  properly 
secure  such  waiver  of  lien  this  option,  and  all  rights 
and  privileges  thereunder  shall  be  instantly  forfeited, 
cancelled,  annulled  and  revoked. 

Time  is  of  the  essence  of  this  agreement,  and  upon 
the  failure  to  perform  any  of  the  covenants  and  obli- 
gations hereby  imposed  upon  the  party  of  the  second 
part,  the  said  Bank  of is  hereby  author- 
ized and  directed  to  deliver  said  deed  of  conveyance, 
and  all  other  papers,  instruments  or  documents  which 
may  be  deposited  in  escrow  in  said  bank  by  the  parties 
hereto  under  the  terms  or  by  reason  of  this  option, 
and  upon  the  failure  of  the  party  of  the  second  part 
to  perform  any  of  the  conditions  or  obligations  hereby 
imposed  upon  him,  the  party  of  the  first  part  is  hereby 
absolved  from  the  performance  of  any  conditions  or 
covenants  imposed  upon  it  hereby. 

The  said  Bank  of is  hereby  made  the 

sole  arbiter  between  the  parties  hereto  as  to  whether 
the  said  conditions  or  obligations  have  been  performed, 
and  the  said  bank's  decision  shall  bind  the  respective 
parties;  and  if  said  bank  decides  that  said  party  of 
the  second  part  has  not  fully  performed  the  same  as 
herein  provided,  said  bank  shall  not  be  restrained 


RATIFICATION  OF  OPTION.  307 

from  the  surrender  of  said  deed  of  conveyance  and 
other  papers,  instruments  or  documents  as  herein  di- 
rected; and  said  Bank  of shall  be  absolved 

from  all  liability  hereunder,  except  fraud  in  the  per- 
formance of  its  duties. 

Upon  the  performance  by  the  party  of  the  second 
part  of  all  the  conditions  of  this  option  and  the  pay- 
ment of  the  said  full  purchase  price  of  said  premises 

and  properties  as  herein  provided  said  Bank  of 

shall  deliver  said  deed  of  conveyance,  papers, 

instruments  and  documents  as  may  be  deposited  in 
escrow  with  it  hereunder  to  the  said  party  of  the  sec- 
ond part. 

This  option  shall  be  binding  upon,  and  run  in  favor 
of  the  heirs,  executors,  administrators,  successors  and 
assigns  of  each  of  the  parties  hereto  except  as  herein 
specially  provided. 

In  witness  whereof,  the  said  party  of  the  first  part 
has  caused  its  corporate  name  to  be  hereunto  sub- 
scribed, and  its  corporate  seal  to  be  hereunto  affixed, 
by  its  officers  thereunto  duly  authorized,  and  the  said 
party  of  the  second  part  has  hereunto  set  his  hand, 
in  duplicate,  the  day  and  year  first  above  written. 

RATIFICATION    OF    OPTION   BY    STOCKHOLDERS. 

Form  No.  10. 

Know  all  men  by  these  presents,  That  we,  the  un- 
dersigned,   stockholders  of 

Mining  Company,  a  corporation  organized  and  exist- 
ing under  and  by  virtue  of  the  laws  of  the  State  of 

and  having  a  capital  stock  of 

dollars,  divided  into .shares  of  the  par  value 

of dollars  each,  and  severally  the  owners 

and  holders  of  record  on  the  books  of  said  corporation 
of  the  number  of  shares  of  the  capital  stock  of  said 
corporation  set  opposite  our  respective  signatures,  and 


308  FORMS— CONTRACTS. 

together  owning  and  holding  more  than  two  thirds  of 
the  entire  issued  and  outstanding  capital  stock  of  said 
corporation,  being  fully  advised  in  the  j)remises, 
hereby  agree,  consent  to,  approve  of,  ratify  and  con- 
firm the  foregoing  option. 

In  witness  whereof,  we  have  hereunto  set  our  hands 
this day  of ,  19... 

NAME  OF  STOCKHOLDER.  NO.  OF  SHARES. 

CERTIFICATE  OF  SECRETARY. 

Form  No.  11. 

I, ,  do  hereby  certify  that  I  am  the 

duly  appointed  and  acting  secretary  of 

Mining  Company,  a  corporation  organized  and  exist- 
ing under  and  by  virtue  of  the  laws  of  the  State  of 


That  the  capital  stock  of  said  corporation  is 

dollars,  divided  into shares  of  the 

par  value  of dollars  each. 

That  only shares  of  said  capital  stock  of  said 

corporation  have  been  issued  and  are  now  outstand- 
ing. That  the  persons  signing  the  above  and  forego- 
ing ratification  at  the  time  their  respective  signatures 
were  affixed  thereto  were  stockholders  of  said  corpora- 
tion, holding  of  record  at  least  two  thirds  of  the  entire 
issued  and  outstanding  shares  of  the  capital  stock  of 
said  corporation,  and  were  at  such  time  the  owners 
and  holders  of  the  number  of  shares  set  opposite  their 
respective  names. 

Witness  my  hand  and  the  corporate  seal  of  said 

corporation  by  me  hereto  affixed  this day  of 

,19... 


Secretary, 
Mining  Company. 


POOLING  AGREEMENT.  309 

INSTRUCTIONS   TO  ESCROW  HOLDER. 

Form  No.  12. 

(Precedent  in  Pollard  v.  Sayre,  45  Colo.  195.) 

To  Bank at 

Herewith  enclosed  find  deed  from  the  undersigned 

conveying  the and 

mining  claims  in Mining  Dis- 
trict, County  of ,  State  of 

This  deed  is  to  be  held  by  you  in  escrow  subject  to 

delivery  to his  heirs  or  assigns,  upon 

their  complying  with  the  conditions  of  a 

said  property  executed  by  us  to  said ,  on 

the day  of ,  19 . . ,  a  copy  of  which 

is  enclosed  herewith.  Upon  the  payment  of  any  sum 

as  therein  provided,  thereof  is  to  be 

placed  to  the  credit  of 

Dated ,  19. .. 

POOLING  AGREEMENT. 

Form  No.  13. 
To  the  Bank 

Gentlemen : 

We,    and ,  severally  de- 
liver to  you  the  following  certificates,  calling  for  the 

number  of  shares  of  capital  -stock  of  the 

Mining  Company  and  issued  to  the  person's  respect- 
ively as  herein  named : 

Certificate  No to for shares. 

Certificate  No to for shares. 

These  certificates,  numbers. to 

inclusive,  are  to  be  held  by  you  as  a  depositary,  and 
pursuant  to  the  agreement  of  said  persons  (herewith 
evidenced  by  their  signatures  to  this  paper),  are  not 
to  be  re-delivered  by  you  to  said  persons,  or  any  of 


310  FORMS— CONTRACTS. 

them,  except  in  the  event  you  should  receive  instruc- 
tions in  writing  signed  by  all  of  such  persons,  it  hav- 
ing been,  and  being  now  agreed  by  them,  that  neither 
said  certificate  nor  the  shares  of  stock  called  for 
thereby,  nor  any  portion  thereof,  shall  be  sold,  trans- 
ferred or  assigned  to  any  person  or  persons,  or  cor- 
poration or  corporations  without  the  consent,  in  writ- 
ing, of  all  the  said  persons  being  obtained  as  afore- 
said ;  but,  provided,  however,  that  said  shares,  or  any 
of  them,  may  be  sold,  transferred  and  assigned  by 
any  of  said  persons  to  any  other  of  said  persons  with- 
out such  consent. 

The  foregoing  shall  be  construed  both  as  a  letter 

of  instructions  to  the  Bank  of . .,  and  as 

an  agreement  between  the  undersigned. 

In  witness  whereof,  the  said  parties  have  hereunto 

set  their  hands,  in ,  this,  the day 

of..  ,  19.. 


ADDENDUM. 

(Precedent  in  Smith  v.  S.  F.  Ry.  Co.,  115  Cal.  584.) 

It  is  mutually  agreed  between  said  persons  that  for 
the  purpose  of  keeping  control  of  said  corporation  in 
the  interest  of  themselves  (and  of  all  persons  who 
shall  buy  any  portion  of  said  stock  from  them)  that 

they  will  during  the  period  of ,  from  the 

date  hereof,  retain  the  power  to  vote  said  shares  in 
one  body;  and  that  the  vote  which  shall  be  cast  by 
said  shares,  whether  for  directors,  or  for  any  other 
purpose,  shall  be  determined  by  ballot  between  them 
or  their  survivors. 


GRANT  DEED.  311 

DEEDS. 

GRANT  DEED. 

Form  No.  14. 

(Precedent  in  Carter  v.  Bacigalupi,  83  Cal.  187.) 

I, ,  grant  to all  that  cer- 
tain mining  claim  situated  in  the Mining 

District,  County  of ,  State  of . . , 

being  the mining  claim,  more  fully  de- 
scribed in  the  notice  of  location  thereof  which  is  re- 
corded in  the  office  of  the  County  Recorder  of  said 

County  of on  the day  of , 

19 . . ,  in  Book ,  at  page of  the  Record  of 

of  the  records  of  said  county ;  and  which 

said  record  is  hereby  referred  to  and  made  a  part 
hereof. 

Witness  my  hand  this day  of , 

19... 

ADDENDUM. 

(Precedent  in  Catron  v.  So.  Butte  Co.,  181  Fed.  941.) 

It  being  understood  that  the  surface  only  is  hereby 
conveyed  and  that  all  minerals  and  metals  and  ores 
below  the  surface  with  the  right  to  mine,  prospect 
for,  and  extract  the  same,  is  hereby  reserved  to  the 
parties  of  the  first  part,  their  heirs,  representatives 
and  assigns,  and  excepted  and  excluded  from  and  not 
passed  by  this  conveyance.  But  the  said  parties  of 
the  first  part,  their  heirs,  representatives  and  assigns 
covenant  and  agree  that  they  will  not  mine  or  exca- 
vate under  the  surface  of  that  portion  of  the  lot 
above  described,  and  which  is  covered  by  the  said 

lode,  nearer  to  the  surface  than 

feet  from  the  present  surface  of  the  ground,  but  will 

in  their  mining  operations,  leave feet  below  the 

present  surface  of  the  ground  for  support.    But  they 


312  FORMS— DEEDS. 

do  not  obligate  themselves,  or  their  heirs,  representa- 
tives or  assigns,  to  support  or  maintain  the  said 

feet  by  timbers  or  otherwise,  but  only  not  to  mine  or 
excavate  within feet  of  the  present  surface. 


And  the  said  parties  of  the  first  part,  for  them- 
selves, their  heirs,  personal  representatives,  and  as- 
signs, covenant  and  agree  that  they  will  not  mine  or 
excavate  under  the  surface  of  that  portion  of  the  said 
lode  claim  which  is  hereinbefore  de- 
scribed, and  hereby  conveyed  nearer  to  the  surface 

thereof  than feet,  but  will  so  conduct  their 

mining  operations  as  not  to  injure  the  surface  rights 
hereby  conveyed  and  so  as  to  at  all  times  abundantly 

protect  said  surface  with  a  depth  of feet 

thereunder. 

DEED    OP   TRUSTEES   FOR   CORPORATION    (Charter 
forfeited). 

Form  No.  15. 

This  Indenture,  made  this day  of , 

A.  D.  19 . . ,  between and ,  as 

trustees  for Company  and  its  stockhold- 
ers, all  of ,  the  parties  of  the  first  part, 

and of ,  in  the  State  of 

,  the  part ...  of  the  second  part. 

Witnesseth : 

Whereas,  Company,  a  corporation 

heretofore  duly  organized  and  existing  under  and  by 

virtue  of  the  laws  of  the  State  of ,  and 

having  its  principal  place  of  business  at 

in  the  County  of and  State  of , 

was,  at  the  time  of  the  forfeiture  of  its  charter  here- 
inafter particularly  mentioned  and  prior  thereto  and 
at  all  such  times  had  and  now  has  the  record  title  to 


DEED  OF  TRUSTEES.  313 

all  and  singular  those  certain  mining  claims,  ground 

and  premises  situate,  lying  and  being  in  the 

Mining  District,  County  of ,  State  of 

known  as and  hereinafter  more  particu- 
larly described;  and 

Whereas,  at  the  time  of  such  forfeiture,  and  prior 
thereto,  and  in  accordance  with  and  as  required  by 
its  articles  of  incorporation  the  corporate  powers,  bus- 
iness and  property  of  said  corporation  were  'conducted, 

exercised  and  controlled  by  a  board  of 

directors  and 

Whereas,  said  corporation  continued  to  be  a  valid 
corporation  under  and  by  virtue  of  the  laws  of  the 

State  of ,  until,  on  or  about  the 

day  of ,  19. .,  on  which  last  named  day 

the  charter  of  said  corporation  became  and  was  for- 
feited by  reason  of  the  failure  and  neglect  of  said  cor- 
poration to  pay  to  the  Secretary  of  State  of  the  State 

of ,  the  license  tax  for  the  year 

as  provided  to  be  paid  by  corporations  under  the  pro- 
visions of  a  certain  act  of  the  legislature  of  the  said 

State  of ,  entitled  "An  Act,  etc 

Approved ,  19 ..."  and 

Whereas,  said  corporation  has  not  been  relieved 
from  said  forfeiture  nor  been  rehabilitated  under  the 
provisions  of  said  act  and  since  the  day  lastly  herein- 
before aforesaid  the  said  corporation  has  had  and 
now  has  no  power  nor  right  to  do  business ;  and 

Whereas,  prior  to  the  time  of  said  forfeiture  and 

on,   to   wit;    the day  of ,    19.., 

and were  duly  elected 

as  the  directors  of  said  corporation  and  thereafter 
acted  as  such.  That  while  acting  as  such  directors 

and  prior  to  said  forfeiture  the  said died 

on  the day  of ,  19...     That  no 

person  was  ever  elected    to    fill    the  vacancy  caused 


314  FORMS— DEEDS. 

thereby  and  at  the  time  of  said  forfeiture  of  said 

charter  the  said  parties  of  the  first  part 

were  the  only  directors  of  said  corporation  in  office 
and  since  said  time  have  been  and  now  are  the  sole 
and  only  directors  of  said  corporation  and  by  reason 
of  said  forfeiture  of  the  said  charter  of  said  corpora- 
tion have  become  and  now  are  the  trustees  for  the 

said Company  and  its  stockholders ; 

which  said  corporation  had  a  capital  stock  of 

dollars,  divided  into shares. 

Now,  therefore,  the  said  parties  of  the  first  part,  as 
trustees  for  said Company  and  its  stock- 
holders, in  consideration  of  the  sum  of 

dollars,  to  them  in  hand  paid,  hereby  remise,  release 
and  quitclaim  to  the  said  part. . .  of  the  second  part, 

heirs  and  assigns  forever,  all  of  the  rights, 

title  and  interest  which  the  said  parties  of  the  first 
part,  as  such  trustees  for  the  said  corporation,  said 

Company  and  its  stockholders,  now  hold 

or  have  a  right  to  convey,  to  all  and  singular  all  of  the 
said  mining  claims  so  owned,  claimed  or  held  by  the 
said Company  .  (Description.) 

The  said  parties  of  the  first  part  so  make  this  con- 
veyance upon  the  express  terms  and  conditions  that 
thereby  the  said  parties  of  the  first  part  personally 
assume  no  liability  or  responsibility  to  the  said  part . . . 

of  the  second  part,  or heirs  or  assigns,  but  in 

this  instrument  are  acting  solely  as  trustees  for  the 

said  corporation,  said Company  and  its 

stockholders,  under  the  provisions  of  said  act  herein- 
before particularly  mentioned. 

In  witness  whereof,  we  have  hereunto  set  our  hands 
and  seals  the  day  and  year  first  above  written. 

(Seal)     As  Trustees  for 

(Seal)      Company 

(Seal)     and  its  Stockholders. 


CERTIFICATE  OF  SECRETARY.  315 

RATIFICATION  OF  DEED  BY   STOCKHOLDERS.* 

Form  No.  16. 

Know  all  men  by  these  Presents: 

That  we,  ,  stockholders  of  the 

Mining  Company,  a  corporation  hereto- 
fore duly  organized  and  existing  under  the  laws  of 
the  State  of ,  the  charter  of  which  cor- 
poration was  and  it  still  is  forfeited  by  reason  of  its 
failure  to  pay  to  the  Secretary  of  State  of  the  State 

of .,  the  license  tax  provided  to  be  paid 

by  corporations  and  which  said  corporation  had  a 

capital  stock  of dollars,  divided  into 

shares  of  the  par  value  of 

dollars  each,  (of  which shares  were  unissued), 

and  severally  the  owners  and  holders  of  record  on  the 
books  of  said  corporation  of  the  number  of  shares  of 
the  said  capital  stock  of  said  corporation  set  opposite 
our  respective  signatures  hereto,  and  together  owning 
and  holding  more  than  two  thirds  of  the  entire  issued 
and  outstanding  capital  stock  of  said  corporation  at 
the  time  of  said  forfeiture,  being  fully  advised  in  the 
premises,  hereby  agree,  consent  to,  approve  of,  ratify 
and  confirm  the  foregoing  deed  of  conveyance. 

In  witness  whereof,  we  have  hereunto  set  our  hands 
this,  the day  of ,  19. 

NAME  OF  STOCKHOLDER.  NUMBER  OF  SHARES. 

*  See   §  223-10,   ante. 

CERTIFICATE  OF  SECRETARY. 

Form  No.  17. 

I, ,  do  hereby  certify  that  I  was  the 

duly  appointed  and  acting  Secretary  of  the 

Mining  Company,  the  corporation  in  the  foregoing 
deed  of  conveyance  named,  prior  to  and  at  the  time 
of  the  forfeiture  of  its  charter  as  aforesaid,  under  the 
laws  of  the  State  of. . 


316  FORMS— DEEDS'. 

That  the  capital  stock  of  said  corporation  was 

dollars,  divided  into shares,  of 

the  par  value  of dollars  each. 

That  no  more  than shares  of  said  capital 

stock  of  said  corporation  had  been  issued  at  the  time 
of  the  forfeiture  of  the  charter  of  said  corporation, 
as  in  the  deed  of  conveyance  hereto  attached,  specifi- 
cally mentioned,  and  said shares  were  the 

entire  capital  stock  of  said  corporation  then  outstand- 
ing. 

That  the  persons  signing  the  above  and  foregoing 
ratification  were,  at  the  time  of  said  forfeiture  and 
also  at  the  time  their  respective  signatures  were  affixed 
to  such  ratification,  stockholders  in  said  corporation 
holding  of  record  at  least  two-thirds  of  the  said  entire 
issued  and  outstanding  capital  stock  of  said  corpora- 
tion, and,  severally  were,  at  such  times,  the  owners 
and  holders  of  record  of  the  number  of  shares  set 
opposite  their  respective  names. 

Witness  my  hand  and  the  corporate  seal  of  the  said 
former  corporation,  by  me  hereto  affixed,  this,  the 
day  of ....,19... 

NOTICE  OF  FORFEITURE. 

Form  No.  18. 

(Precedent  in   Elder  v.  Horseshoe  Co.,   194  U.  S.   248;   s.  c.   9 
S.  Dak.  636.) 

To ,  his  heirs,  administrators,  and  to 

all  whom  it  may  concern : 

Take  notice  that  I  have  done dollars' 

worth  of  labor,  each  year  in  order  to  hold  the 

mining  claim,  situated  in Min- 
ing District,  County  of ,  State  of , 

the  notice  of  location  whereof  is  recorded  in  the  office 

of  the  Recorder  of in  Book at 

page of  Locations  of  the  records  of  said  County 

of for  the  years  ending  December  31st, 


NOTICE  OP  FORFEITURE).  317 

19..,  and  December  31st,  19..,  and  December  31st, 
19 .  . ,  and  unless  within  ninety  days  after  this  notice 
by  publication  you  fail  or  refuse  to  contribute  your 

proportion  of  such  expenditure,  viz.  $ ,  being 

$ for  each  of  said  years,  your  interests' in  said 

mining  claim  will  be  forfeited  to  and 

become  the  property  of  the  subscriber  under  Section 
2324  of  the  Revised  Statutes  of  the  United  States. 


AFFIDAVIT   OF   PERSONAL,    SERVICE. 

(In  California  in  case  of  personal  service  of  the 
above  notice  an  affidavit  in  substantially  the  following 
form,  attached  to  a  true  copy  of  such  notice,  must  be 
filed  with  the  proper  County  Recorder  within  ninety 
days  after  the  giving  of  said  notice.  C.  C.,  §  1426o.) 

State  of  California,        ) 

County  of J  ss' 

• 

being  duly  sworn,  deposes  and  says ; 

That  he: is  the  person  giving  the  notice,  a  true  copy 
whereof  is  hereto  attached,  marked  Exhibit  "A,"  and 
made  a  part  hereof. 

That  on  the day  of ,  19 . . , 

personally  served  the  said  notice  upon 

,  the  person  (co-owner)  therein  named, 

by  delivering  to  and  leaving  said  notice  with  said 

personally,  at in  the  County 

of ,  State  of  California. 

AFFIDAVIT  OF  PUBLICATION. 

When,  in  California,  the  service  is  by  publication 
a  printed  copy  of  the  notice  attached  to  an  affidavit 
of  the  printer  or  the  foreman  or  principal  clerk  of 
the  newspaper  publishing  the  same  must  be  recorded 
as  aforesaid  within  180  days  after  the  first  publication 
thereof. 


318  FORMS— NOTICE   OP   FORFEITURE. 

This  affidavit  may  be  in  the  usual  form  furnished 
by  newspapers  publishing  legal  notices.  It  is  essen- 
tial, however,  that  the  name  of  the  newspaper,  place, 
and  first  and  last  days  of  publication  be  stated  therein. 
C.  C.,  §  1426o. 

LEGAL  PROCEEDINGS. 

ANSWER — ADVERSE    CLAIM. 

Form  No.  19. 

(Title  of  court  and  cause.) 

Comes  now  the  defendant  in  the  above  entitled 
action  and  answering  the  complaint  of  the  plaintiff 
herein,  says: 

1.  Defendant  avers  that  he  declared  his  intention 
to  become  a  citizen  of  the  United  States  of  America 

on  the day  of ,  19. .,  in  the 

Court  of  the  State  of ,  in  and  for  the 

County  of 

2.  (Deny  the  allegations  of  the  complaint  as  the 
facts  may  warrant.) 

II. 

For  a  further  and  separate  answer  and  defense 
herein  defendant  says 

1.  (Eepeat  paragraph  1,  ante.) 

2.  Defendant  avers  that  he  and  his  predecessors  in 
interest  and  grantors  under  and  by  virtue  of  a  loca- 
tion made  by and of  the  prem- 
ises hereinafter  and  in  the  next  succeeding  paragraph 
hereof  ful]y  described,  have  claimed,  and  defendant 
does  still  claim  adversely  to  plaintiff  an  estate  and 

interest  in  said  portion  of  said  pretended 

mining  claim  said  portion  being  the  alleged  overlap  of 

the  said mining  claim  upon  the  said  alleged 

mining  claim. 


ANSWER— ADVERSE  CLAIM.  319 

3.  Defendant  denies  that  his  said  title,  right  and 
estate  were  acquired  by  him  subsequent  to  said  alleged 
acquisition  of  the  plaintiff  and  avers  that  his  right, 
title  and  estate  and  right  of  possession  of,  in  and  to 
all  of  the  premises  hereinafter  in  this  paragraph  de- 
scribed and  set  forth  and  every  part  thereof,  is  of 
right  and  that  he  has  the  exclusive  right,  title  and 
interest  and  right  of  possession  of  the  same,  and  every 
part  thereof  as  against  the  plaintiff  and  all  others; 
and  that  such  right  and  estate  were  acquired  by  the 
predecessors  in  interest  and  grantors  of  this  defend- 
ant prior  to  the  alleged  acquisition  of  the  said  plain- 
tiff's pretended  right  or  estate  in  said  alleged 

mining  claim.  And  defendant  avers  that  plaintiff 
has  no  right,  title,  interest  in  or  right  of  posses- 
sion therein  or  thereto,  or  any  part  thereof.  That 

by  virtue  of  a  location  made  by and 

,  each  and  both  of  them  citizens  of  the 

United  States  on,  to  wit;  the day  of , 

19 . . ,  as  appears  by  reference  to  the  notice  of  location 
thereof,  which  is  in  the  words  and  figures  following 

(Here  insert) 

and  by  reason  of  mesne  conveyances  in  writing  from 
said *. . . .  and ,  and  their  succes- 
sors in  interest  and  grantees,  and  by  a  compliance,  by 
defendant,  and  his  predecessors  in  interest  and  grant- 
ors with  the  mining  acts  of  Congress,  the  laws  of  the 

State  of and  the  rules,  regulations  and 

customs  of  the  miners  of  the  said Mining 

District,  wherein  the  said  premises  are  situated,  de- 
fendant is  the  owner  of  and  entitled  to  the  possession 

of  said mining  claim,  and  of  the  whole 

thereof. 

III. 

For  a  further  and  separate  answer  and  defense 
herein  defendant  says 


320  FORMS— LEGAL,  PROCEEDINGS. 

1.  (Eepeat  paragraph  1,  ante.) 

2.  (Allege  as  in  Complaint,  Form  No.  22,  para- 
graphs 2  to  4,  inclusive.) 

Wherefore,  defendant  demands  judgment  that  he  is 
entitled  to  the  possession  of  the  said  mining  ground 
in  dispute  and  for  his  costs  herein  expended. 

ANSWER    (Negligence). 

Form  No.  20. 

(Title  of  court  and  cause.) 

(After  making  proper  denials  and  admissions  pro- 
ceed as  follows:) 

And  for  affirmative  answer  defendant  herein  al- 
leges : 

1.  The  defendant  herein  here  repeats  and  alleges 
all  the  matters  and  things  set  forth  in  the  subdivisions 

of  its  answer  and  numbered ,  and  expressly 

makes  said  subdivisions,  and  each  of  them,  a  part  of 
this  its  further  and  separate  answer  and  affirmative 
defense  the  same  as  if  incorporated  herein,  and  prays 
that  the  said  subdivisions,  and  each  of  them,  be  taken 
and  deemed  a  part  of  this  separate  answer  and  de- 
fense the  same  as  though  herein  set  out  .at  length. 

2.  That  on  the day  of ,  19.., 

and  at  all  times  mentioned  in  the  said  complaint,  the 

said  mine  and  the were  in  as  safe    and 

proper  conditions  as  it  is  possible  under  the  most  skill- 
ful supervision  of  the  most  skillful  miners   to    keep 
them  and  each  of  them.     That    the    most  approved 

method  and  manner  of has  been  adopted 

and  was.  in  use  in  said  mine    on   said day  of 

,  19 ...     That  the  defendant  has  exer- 
cised and  did  exercise  great  care  in  supplying  and 
did  supply,  its  employees  at  said  mine  with  suitable 

appliances  and  safe  materials  to in  a  safe 

and   proper   conditions   so   as   to   avoid    all    possible 


ANSWER— UNDERGROUND   TRESPASS.  321 

danger  to  its  employees,  and  all  persons  working  in  or 
about  said 

3.  That  the  plaintiff  was  accustomed  to  working 
in  mines  of  a  similar  character  to  that  of  defendant 
and  was  perfectly  competent  to  judge  of  the  safety 

of  the  said  mine,  and  the  safety  of 

wherein  he  was  working,  and  the  manner  and  method 

of That  the  risk  of  working  therein 

was  assumed  by  the  plaintiff  as  a  part  of  his  employ- 
ment in  said  mine  with  a  full  knowledge  of  the  con- 
dition and  safety  thereof  and    of    the  manner  and 

method  of at  and  before  the  said 

day  of ,  19... 

4.  That  the  persons  whose  immediate  duty  it  was, 

and  upon  whom  the  responsibility  rested  to 

in  a  safe  and '  proper  condition  at  the  time  of  the 
plaintiff's  alleged  injuries,  were  all  fellow  servants 
of  the  plaintiff  at  the  time  of  the  said  alleged  acci- 
dent and  injury  to  plaintiff,  and  at  all  times  prior 
thereto,  during  which  the  plaintiff  was  employed  in 
working  in  the  said 

5.  That  said  alleged  hurt  or  injuries  were  and  are 
the  result  of  the  negligence  of  fellow  servants  of  the 

plaintiff  in and  not  the  result  of  any 

fault,  negligence,  neglect,  intent  or  act  on  the  part  of 
defendant. 

ANSWER — UNDERGROUND  TRESPASS. 

Form  No.  21. 
(Title  of  court  and  cause.) 

Comes  now ,  the    defendant   in    the 

above  entitled  action  and  answering  the  complaint  of 
the  plaintiff  herein,  says : 

1.  That  as  to  whether  or  not  the  plaintiff  is  now, 
or  ever  was  at  any  time,  the  owner  of,  or  entitled  to 
the  possession  of  that  certain  lode  mining  claim  known 


322  FORMS— LEGAL   PROCEEDINGS, 

as  or  called  the.  . lode,  situated  in  the 

Mining  District,  County  of , 

State  of ,  described  as  in  the para- 
graph in  the  plaintiff's  complaint  set  forth,  this  de- 
fendant has  not  sufficient  information  upon  which  to 
base  a  belief  and  placing  his  denial  upon  that  ground, 
defendant  denies  the  same. 

2.     Defendant  denies  that  any  vein,  lode  or  ledge 

of  quartz  rock  in  place,  bearing or  other 

precious  metal,  is  found  in  the  said lode 

mining  claim  that  in  its  longitudinal  course  or  strike 
passes  into  the  said  pretended lode  min- 
ing claim  through  the end  line  thereof 

and  extends  through  the  said  mining  claim  in  a 

direction  and  lengthwise  of  said  mining 

claim  and  passes  out  of  said  mining  claim  through 

the end  line  thereof,  or  that  the  top  or 

apex  of  said  vein,  or  any  vein,  lode  or  ledge  lies 
throughout  the  entire  length  of  the  said  mining  claim 
inside  the  surface  thereof  extended  downward  ver- 
tically ;  that  said  vein,  lode  or  ledge  in  its  downward 
course  departs  from  the  perpendicular  at  an  angle 

of  about degrees  from  the  horizontal,  or  at  an 

angle  from  the  horizontal  in  a direction, 

or  any  direction,  or  that  the  general  course  or  strike 
of  said  vein,  lode  or  ledge,  or  any  vein,  lode  or  ledge 
lying  within  the  said  pretended lode  min- 
ing claim  is  nearly  or  quite  co-incident  with  the  sur- 
face side  lines  of  the  said  pretended  lode  mining 
claim,  or  that  by  reason  thereof,  or  for  any  reason, 
the  plaintiff  is  now,  or  at  any  time  mentioned  in  the 
complaint,  the  owner  of,  or  entitled  to  the  exclusive 
possession  of  any  vein,  lode  or  ledge,  or  so  much 
thereof  as  the  top  or  apex  thereof  lies  inside  of  the 

said  surface  boundaries  of  the  said  pretended 

lode  mining  claim  throughout  its  entire  depth. 

or  that  the  plaintiff  has  at  all  times,  or  at  any  time. 


ANSWER— UNDERGROUND   TRESPASS.  323 

been  in  possession  of  said  pretended lode 

mining  claim,  or  said  vein,  lode  or  ledge,  as  in  the 

paragraph  of  said  complaint  mentioned,  or 

at  all. 

3.  Denies  that  the  plaintiff  has  any  lode  or  vein 
or  ledge  of  mineral-bearing  rock  in  place  extending 
throughout  the  said  pretended lode  min- 
ing claim,  or  that  any  vein  or  lode  or  ledge  or  mineral- 
bearing  rock  having  its  apex  within  the  said 

lode  mining  claim  has  any  dip  in  a direc- 
tion outside  the  surface  lines  of  the  said  pretended 
lode  mining  claim. 

4.  Denies  that  any  vein,  lode  or  ledge  or  mineral- 
bearing  rock  in  place  having  its  top  or  apex  within 

the  surface  lines  of  the  plaintiff's  pretended 

lode  mining  claim  in  its  course  downward  between 
vertical  planes  drawn  downward    through    the    end 

lines  of  said  pretended lode  mining  claim 

continued  in  their  own  direction  in  its  departure  from 
its  perpendicular  extends  to  a  great  depth,  to  wit:  to 

a  point  far  outside of  or or 

at  all,  or  below,  or  beyond  the  workings  of  the  defend- 
ant, or  any  workings  of  the  defendant  continued  in 
its  downward  course  between  said  planes  to  an  un- 
known distance,  or  to  any  distance. 

5.  Defendant  denies  that  on  or  about  the 

day  of ,  19.  .,  or  at  any  other  time  he 

wrongfully  or  unlawfully  "entered  into  or  upon  that 
part  or  portion  of  any  vein,  lode  or  ledge  having  its 
top  or  apex  within  the  lines  of  the  said  pretended 

lode  mining  claim  which  in  its  course 

downward  extends  outside  of  and  to  the.  . of  • 

the  vertical side  lines  of  said    pretended 

lode  mining  claim  so  continued  in  their 

own  direction  that  the  same  will  intersect  such  exte- 
rior portions  of  said  vein,  lode  or  ledge  having  its 
top  or  apex  within  such  surface  lines    of    said  pre- 


324  FORMS — LEGAL  PROCEEDINGS. 

tended lode  mining  claim,  or  that  he 

ousted  or  ejected  the  plaintiff  therefrom  or  from  any 
vein,  lode  or  ledge,  or  that  he  wrongfully  took,  or 
carried  away  therefrom,  or  converted  to  his  own  use 
large  or  valuable  quantities,  or  any  quantity  of  ore 
in  said  vein,  lode  or  ledge  constituting  the  property  of 

the  plaintiff  of  the  value  of dollars,  or  of  any 

value,  or  that  he  has,  at  all  times  since,  or  at  any  time 
or  since,  wrongfully  withheld  or  that  he  does  now 
wrongfully  withhold  from  the  plaintiff  the  possession 

of  the  said  vein,  lode  or  ledge  so  lying  to  the 

of  the side  line  of  the  said  pretended 

lode  mining  claim  between  the  planes  drawn  down 
through  the  end  lines  of  said  claim  as  aforesaid,  or 
that  he  wrongfully  withholds  from  the  plaintiff  the 
possession  of  any  vein,  lode  or  ledge,  or  bodies  of  ore, 
or  any  property  of  any  kind  or  character  to  damage 

plaintiff  in  the  sum  of dollars,  or  to  the 

damage  of  plaintiff  in  any  sum  whatever. 

6.  Defendant  alleges  the  truth  to  be  that  all  the 
ores,  mineral  and  rock  that  have  been  extracted  and 
carried  away  from  the  point  in  controversy  by  him 
are  and  were  a  part  of  a  vein,  lode  or  ledge  having 

its  top  or  apex  within  the  surface  lines  of  the 

lode  mining  claim,  the  property  of  this  defendant, 
which  said  vein,  lode  or  ledge  and  ores  belonged  to  and 
were  and  are  the  property  of  this  defendant  by  virtue 

of  the  same  being  a  part  of  the lode  mining 

claim,  located  on  the day  of ,  19 . . , 

by  the  grantors  and  predecessors  in  interest  of  this 

defendant,  which  said lode  mining  claim 

is  now  the  property  of  this  defendant,  together  with 
all  ores,  ledges,  lodes  and  veins  having  their  apex  or 

top  within  the  surface  lines  of  the  said 

lode  mining  claim. 

7.  Defendant  denies  that  any  of  the  ores,  metals, 
minerals,  rock,  or  earth  which  he  has  mined  or  re- 


COMPLAINT— ADVERSE   CLAIM.  325 

moved  from  within  the  surface  side  lines  of  the  said 

lode  mining  claim  extended  downward 

vertically  were  a  part  of  or  belonged  to  any  vein,  lode 
or  ledge  having  its  top  or  apex  within  the  surface  side 

lines  of  the  said  pretended lode  mining 

claim,  the  property  of  the  plaintiff. 

8.  Defendant  denies  that  he  has  ever  removed,  ex- 
tracted, mined  or  carried  away  any  ores,  metals,  min- 
eral rock,  or  earth  from  any  vein,  lode  or  ledge  other 
than  a  vein,  lode  or  ledge  having  its  top  or  apex 
within  the  surface  of  the  said. lode  min- 
ing claim,  the  property  of  this  defendant. 

Wherefore,  defendant  prays  that  this  action  may 
be  dismissed  and  that  defendant  may  go  hence  with- 
out day  and  that  he  have  and  recover  his  costs  and 
disbursements  herein. 

COMPLAINT — ADVERSE  CLAIM. 

Form  No.  22. 
(Title  of  court  and  cause.) 

Comes  now  the  plaintiff  in  the  above  entitled  action 
and  complains  of  the  defendant,  and  for  cause  of 
action,  alleges: 

1.  That  the  plaintiff  is  a  citizen  of  the  United 
States  of  America. 

2.  That  on  or  about  the day  of . , 

19 being  citizens  of  the  United 

States,    entered    upon    and    discovered   that    certain 
mining  ground,  and  mining  claim  since  then  known 

and  designated  as  the mining  claim, 

situated  in  the Mining  District,  County 

of ,  State  of ,  and  then 

and  there  took  possession  of  and  located  the  same, 
after  discovering  therein  a  vein,  lode  or  ledge  of  min- 
eral bearing  ore  in  place  bearing by  build- 
ing large  stone  monuments  at  each  of  the  corners  of 


326  FORMS— LEGAL  PROCEEDINGS. 

said  mining  claim  and  similar  monuments  at  or  near 
the  center  of  each  end  line  thereof  and  by  placing  in 
one  of  said  monuments,  to  wit:  the mon- 
ument, a  notice  of  location  of  said  mining  claim  and 
designating  the  same  as  the  location  monument ;  all  of 
said  monuments  being  built  in  conspicuous  places,  and 
so  placed  upon  the  ground  that  the  boundaries  of  said 
claim  were  distinctly  marked  on  the  ground  and  that 
the  boundaries  thereof  could  be  readily  traced.  That  at 
the  time  of  making  the  said  location  said  ground  was 
a  part  of  the  public  domain,  unoccupied,  vacant,  and 
unclaimed.  That  the  said  claim  so  located  by  the 
above  named  persons  was  described  in  said  notice  of 
location  as  follows. 

(Description.) 

That  said  notice  contained  the  names  of  the  locators, 

to  wit and the  date  of  location, 

the  name  of  the  claim,  and  such  a  description  of  the 
claim  located  with  reference  to  a  natural  object 
and  permanent  monument  as  to  identify  the  said 

claim.  That  thereafter,  on  the day  of 

,  19 . . ,  the  said  locators  caused  a  record 

of  said  location  notice  to  be  made  in  the  office  of 

the  County  Recorder  of  said  County  of , 

and  that  thereafter,  the  said  locators  caused  a  record 
of  said  location  notice  to  be  made  in  the  office  of  the 
Mining  Recorder  of  said Mining  District. 

3.  That  after  the  said  location  of  said 

mining  claim  all  of  the  said  locators  of  said 

mining  claim  did,  by  divers  conveyances  grant,  bar- 
gain and  sell,  convey  and  confirm  all  right,  title  and 
interest  they  had  in  and  to  said  claim  to  divers  other 
person  or  persons  who,  thereafter,  conveyed  the  said 
mining  claim  to  the  plaintiff,  who,  ever  since  has  been 

and  now  is  the  owner  of  the  said mining 

claim. 


COMPLAINT— ADVERSE   CLAIM.  327 

4.  That  the  plaintiff  and  his  said  grantors  have 
performed    more    than    one    hundred    (100)    dollars 

worth  of  work  on  said  claim  each  year  since 

and  performed  work  thereon  of  the  value  of 

dollars. 

5.  That  subsequent  to  the  said  location  of  the  said 
mining  claim  and  prior  to  the  bringing  of  this  suit, 
the  defendant  entered  upon  and  took  possession  of  a 

portion  of  said. mining  claim,  calling  the 

portion  so  taken  possession  of,  with  other  ground,  the 

mining  claim,  and  ousted  and  ejected 

the  plaintiff  from  said  portion,  and  ever  since  then 
defendant  has  claimed,  and  does  still  claim  adversely 
to  this  plaintiff  an  estate  and  interest  in  said  portion 
of  said  mining  claim,  the  said  portion  being  the  over- 
lap of  the  said mining  claim  consisting 

of  about acres,  and  particularly  described  as 

follows 

(Description.) 

as  appears  by  reference  to  a  diagram  of  said  claims 
hereto  annexed,  marked  Exhibit  A  and  hereby  made 
a  part  of  this  complaint. 

6.  That  on  or  about  the day  of ., 

19 .  . ,  the  defendant  made  an  application  to  the  Gov- 
ernment of  the  United  States  for  a  patent  for  the 

said mining*  claim,  including  the  said 

portion   of  the  said mining  claim  over- 
lapped.   That  thereafter,  and  on  or  about  the 

day  of ,  19 . . ,  and  within  the  sixty  days 

period  of  newspaper  publication  of  the  notice  of  such 
application  the  plaintiff  herein  filed  his  adverse  claim 
against  the  issuance  of  the  patent  to  the  said  defend- 
ant  with   the   Register   of   the   United   States  Land 

Office  at ,  that  being  the  Land  Office  District 

in  which  said. mining  claim  is  situated;  said 

adverse  showing  the  nature,  boundaries  and  extent  of 


328  FORMS — LEGAL  PROCEEDINGS. 

such  adverse  claim;  and  the  plaintiff  brings  this 
action  for  the  purpose  of  determining  such  adverse 
claim  and  the  right  of  possession  to  the  said  overlap 
hereinbefore  and  in  paragraph  5  hereof  particularly 
described. 

Wherefore  plaintiff  demands  judgment  that  he  is 
entitled  to  the  possession  of  the  said  mining  ground  in 
dispute  and  for  his  costs  herein  expended. 

COMPLAINT    (Bill) — ADVERSE    CLAIM.       (U.    S.    Court.) 

Form  No.  22*. 
(Title  of  court  and  cause.) 

JBill  in  suit  to  quiet  title. 

To  the  Honorable  the  Judges  of  the  Circuit  Court  of 

the  United  States  in  and  for  the Circuit, 

District  of ,  sitting  in  equity. 

,  complainant,  brings  this,  his  bill, 

against  the  respondent Company,  a  cor- 
poration, and  thereupon  your  orator  complains  and 
says: 

I.  Your  orator  showeth  unto  your  Honors  and 
avers  that  he  is  a  citizen  of  the  United  States  of 
America,  and  was  at  all  of  the. times  herein  mentioned, 
continuously,  and  now  is  a  citizen,  resident  and  in- 
habitant of  the  County  of in  the  State  of 


II.     That  said  respondent  is  a  corporation  organ- 
ized and  existing  under  and  by  virtue  of  the  laws  of 

the  State  of ,  having  its  principal  place  of 

business   at ,   County  of ,   State 

of ,  and  engaged  in  the  business  of  mining 

in  the Mining  District,  County  of , 

State  of ,  and  that  said  respondent  is,  and 

at  all  the  times  herein  mentioned,  and  prior  thereto, 
was  a  citizen  of  said  State  of 


COMPLAINT— ADVERSE   CLAIM.  329 

III.  That  the  amount  in  controversy  herein  ex- 
ceeds the  sum  or  value  of  two  thousand  (2,000)  dol- 
lars, exclusive  of  interest  and  costs.* 

3.  That  on  and  prior  to  the day  of 

,  19 . . ,  the  property  hereinafter  described  and 

known  as  Section in  Township , 

Range M.,  in  the Mining 

District,  County  of ,  State  of , 

was  a  part  of  the  vacant  and  unappropriated  public 
land  of  the  United  States,  free  and  open  to  explora- 
tion and  purchase  by  the   citizens  thereof,   for  the 
valuable  mineral  deposits  therein  contained. 

4.  That  on  said  date,  to-wit :    the day  of 

. . : ,  19 . . , and ,  being 

citizens    of    the  United   States,   entered    upon    said 
ground,     hereinafter     particularly     described,     and 

known  as  the Placer  Mining  Claim,  and 

segregated  the  same  from  the  public  domain,  by  post- 
ing a  notice   of  location  thereon   and  by  distinctly 
marking  the  boundaries  thereof  upon  the  ground,  so 
that  the  same  could  be  readily  traced ;  and  did  imme- 
diately thereafter,  to-wit:    on  or  about  the 

day  of ,  19 . . ,  make  a  discovery  of 

and and  other  valuable  minerals  and  val- 
uable mineral  deposits  within  the   exterior  bounda- 
ries of  said Placer  Mining  Claim,  and  did, 

thereafter,  to-wit :    on  the day  of , 

19. .,  cause  to  be  recorded  in  the  office  of  the  County 

Recorder  of  said   County  of ,   which  was 

and  is  the  County  within  which  said  placer  mining 
claim  was  and  is  situate,  a  true  copy  of  said  notice 
of  location  of  said  placer  mining  claim,  giving    the 

names  of  said  locators,  said and  his  said 

associates,   as  the  locators  thereof,  the  date  of  said 
location,  the  name  of  the  claim,  and  such  a  descrip- 
tion of  such  placer  mining  claim  hereinbefore    re- 

*  See  §  17,  ante. 


330  FORMS — LEGAL  PROCEEDINGS. 

ferred  to,  and  hereinafter  particularly  described, 
with  reference  to  natural  objects  and  permanent 
monuments  so  that  the  same  could  be  readily  identi- 
fied. Said  property  so  located  as  aforesaid,  being 

described    as    follows,  to-wit :    The quarter 

of    Section in    Township of 

Range ,  M.,  containing  one  hun- 
dred and  sixty  acres  of  land. 

5.  Your  orator  further  showeth  unto  your  Honors 
'  and  avers  that  said  locators,  said and  his 

said  associates,  ever  since  the  said  date  of  the  location 
of  said  placer  mining  claim,  and  now  are,  the  owners 
of  said  placer  mining  claim  and  location,  premises  and 
property,  and  the  whole  thereof,  as  to  all  persons,  save 
and  except  the  United  States  of  America;  in  the  pos- 
session and  entitled  to  the  possession  of  every  part  of 

the  same.    That  said .and  his  said  associates 

have  complied  with  every  rule,  regulation  and  custom, 

in  force  in  said Mining  District,  and  with  the 

provisions  of  the  mining  laws  of  the  State  of , 

and  the  Acts  of  Congress  in  that  behalf  enacted ;  and 
the  respondent  herein  has  no  right,  title  or  estate 
whatsoever  in  or  to  said  placer  mining  claim  or  loca- 
tion, or  in  or  to  any  part,  portion  or  parcel  thereof. 

6.  Your  orator  further  showeth  unto  your  Honors 
and  avers  that  respondent  herein  asserts  that  it  is, 
and  pretends  to  be  the  owner  of  all  of  said  Section 

in  Township of  Range . . . , 

M.  hereinbefore  described,  under  and  by 

virtue  of  placer  mining  locations  pretendedly  made 
by  it,  or  those  under  whom  it  claims,  prior  to  the 
title  of  your  orator,  or  his  said  co-tenants,  but  which 
said  pretended   placer    mining    locations,   and    each 
thereof,  so  claimed  by  the  respondent  herein,  or  those 
under  whom   it   claims,   were   pretendedly  made  by 

respondent  at  the  time  when  the  said  Section 

and  the  whole  thereof,  had  passed  into  private  owner- 


COMPLAINT— ADVERSE   CLAIM.  331 

ship,  and  the  same,  and  no  part  thereof,  was  vacant 
or  unappropriated  public  land,  or  free  or  open  to 
exploration,  or  location,  or  purchase,  as  a  part  of  the 
public  domain,  under  the  mining  law  of  the  United 
States,  or  otherwise. 

7.  That  said  assertion  of  title  and  pretension  of 
ownership  upon  the  part  of  the  respondent  herein,  is 
wrongful  and  without  right,  and  the  alleged  title  of 
said    respondent    is    fraudulent    and    void,  the    said 
respondent  or  those  under  whom  it  claims,  never,  at 
any  time,  having  made  or  adopted  a  discovery  of  any 
valuable  mineral  within  the  boundaries  of  said  Section 
hereinbefore  described,  and  known  as  and  called  by  it, 

the Consolidated  Placer  Mining  Claim,  or 

within  the  boundaries  of  any  part  or  portion,  or  par- 
cel of  ground  claimed  by  it,  within  said  Section,  by 
whatsoever  name  by  it  called. 

8.  That  the  respondent  herein,   or    those    under 
whom  it  claims,  did  not,  prior  to  the  said  location  of 

said and  his  said  associates,  as  hereinbefore 

aforesaid,  or  at  any  other  time,  mark  the  boundaries 
of  said  or  any  placer  location,  therein  alleged  to  be 
embraced  and  included  in  and  constituting  a  part  of 

its  said  alleged,  and  pretended Consolidated 

Placer  Mining  Claim,  upon  the  ground,  so  that  the 
same  could  be  readily  traced,  nor  traced  at  all. 

9.  Your  orator  further  showeth  unto  your  Honors 
and  avers  that  the  respondent  herein,  and  those  under 
whom  it  claims,  in  fraud  of  the  rights  of  the  citizens 
of  the  United  States,  and  particularly  in  fraud  of 
the  rights  of  your  orator,   and  his  said  co-tenants, 
have  caused  to  be  recorded  in  the  office  of  the  said 
County  Recorder,  pretended  notices  of  location,  de- 
scribing said  Section in  Township 

of  Range M.  therein  and  thereby  covering, 

including   and   overlapping   the  said   placer  mining 
claim  and  location  of  your  orator,  and  his  said  co- 


332  FORMS— LEGAL  PROCEEDINGS. 

tenants,  in  said  Section ;  calling  the  alleged 

placer  mining  locations  therein,  the placer 

mining  claim,  pretendedly  located  upon  and  pretend- 
edly  including  all  of  the  northeast  quarter  of  said  Sec- 
tion   ;  the placer  mining  claim 

pretendedly  located  upon  and  pretendedly  including 

all  of  the  southeast  quarter  of  said  Section ; 

the placer  mining  claim  pretendedly  located 

upon  and  pretendedly  including  all  of  the  northwest 

quarter  of  said  Section ;  the 

placer  mining  claim  pretendedly  located  upon  and 
pretendedly  including  all  of  the  southwest  quarter  of 
said  Section;  each  of  said  pretended  locations  pre- 
tendedly containing  160  acres  of  land,  and  said  four 
alleged  locations  of  land  pretendedly  constituting  the 

said  alleged Consolidated  Placer  Mining 

Claim. 

10.  That  said  notice  of  location,  and  each  of  them, 
is    an    assertion    of    rights    claimed    under    and    by 
virtue  of  fraudulent,  void  and  fictitious  mining  loca- 
tions falsely  and  fraudulently  claimed  to  have  been 
made  by  the  respondent  herein,  or  those  under  whom 
it  claims,  and  which  cast  a  cloud  upon  the  title  of 
your  orator  and  of  his  said  co-tenants. 

11.  That  the  claims  of  the  respondent  herein  are 
all,  and  each  of  them  is,  inferior  and  subordinate  to 
the  title  of  your  orator  and  his  said  co-tenants,  which 
title,  last  aforesaid,  arises  by  virtue  of  the  valid  loca- 
tion so  made  by  said and  his  said  asso- 
ciates,  as  hereinbefore    set    forth,   and  respondent's 
claims  and  titles  cast  a  cloud  upon  the  possession  and 
title  of  your  orator,  and  his  said  co-tenants,  and  pre- 
vent them   from '  enjoying  fully   and  peaceably  the 
fruits  of  their  said  ownership. 

12.  Your  orator  further  showeth  unto  your  Honors 
and  avers  that  the  said  alleged  several  placer  mining 
claims,  and  locations,  particularly  mentioned  in  para- 


COMPLAINT— ADVERSE   CLAIM.  333 

graph  9  hereof,  and  each  of  them,  is  and  at  all  times 
has  been,  a  fraudulent  and  void  location  against  the 
Government  of  the  United  States  and  your  orator 
and  his  said  co-tenants  and  all  other  persons  inter- 
ested in  the  ground  sought  to  be  embraced  therein  or 
covered  thereby.  That  at  the  time  of  the  alleged 
location  of  each  thereof,  and  at  all  times  subsequently, 
there  were  not  eight,  nor  any  bona  fide  individual 
claimants  as  locators  thereof,  among  the  eight  alleged 
locators  of  each  of  said  alleged  placer  locations,  and 
that  160  acres  of  mineral  land  were  so  illegally  and 
fraudulently  included  within  each  of  said  alleged 

placer  mining  claims  or  locations,  to-wit :  said 

placer  mining  claim,  said placer  mining 

claim,  said placer  mining  claim  and  said 

placer  mining  claim,  by  the  respondent 

herein,  or  those  under  whom  it  claims,  for  the  pur- 
pose of  thereby  surreptitiously  acquiring  and  appro- 
priating to  their  own  use  more  mineral  land  in  one 
location  than  they  were  entitled  to  under  the  mining 

law  of  the  United  States.    That  the  names  of 

and ,  named  and  used  as  locators  of  said 

alleged  placer  mining  claims  and  locations  mentioned 

in  paragraph  9  hereof,  by  said and 

,  were  each  and  all  dummies  and  sham 

locators  and  none  of  said  six  persons,  whose  names 

were  so  used  ever  had  or  was  intended  by  said 

and to  have  any  estate,  right,  title 

or  interest  whatsoever  in  said  alleged  placer  mining 
claims  or  locations,  or  of,  in,  or  to  any  one  of  them, 
nor  were  they,  nor  any  of  them,  ever  informed,  or 
had  any  knowledge  of  the  existence  of  said,  or  of 
any  one  of  said  pretended  placer  locations  at  the 
time  of  the  said  pretended  location  thereof,  and  said 
and did  wrongfully  and  unlaw- 
fully conspire  with  each  other  at  and  prior  to  the 
date  of  the  alleged  location  of  each  of  said  alleged 


334  FORMS — LEGAL  PROCEEDINGS. 

and  pretended  placer  claims  and  locations,  to  wrong- 
fully and  fraudulently  make  and  claim  the  said  sev- 
eral alleged  and  pretended  placer  mining  claims  or 
locations  and  each  of  them,  in  the  manner  and  way 

aforesaid,  and  said and by  the 

use  of  said  six  sham  and  dummy  locators  and  did 
attempt  to  make  said  pretended  locations,  and  each 
of  them,  in  pursuance  of  such  conspiracy,  and  said 
respondent  has,  and  now  claims,  the  said  160  acres 
of  mineral  land  in  each  of  said  several  placer  mining 
claims  and  locations  in  controversy  herein  and  called 

by  respondent  herein   the Consolidated 

Placer  Mining  Claim,  under  and  by  virtue  of  the  said 
false,  fraudulent  and  illegal  pretended  several  loca- 
tions mentioned  and  described  in  paragraph  9  hereof. 

13.  Your  orator  further  showeth  unto  your  Honors 
and  avers  that  the  respondent  herein  in  pursuance  of 
such  conspiracy  and  to  fully  consummate  the  same, 
and  wrongfully  claiming  to  be  the  owner    of    said 
alleged  and  pretended  placer  mining  claims,  did  here- 
tofore, to-wit :  on  or  about  the day  of , 

19 . . ,  file  or  cause  to  be  filed  in  the  United  States 

Land  Office  at in  the  State  of , 

its  application  for  a  patent  from  the  Government  of 
the  United  States  of  America,  for  said  alleged  and 

pretended Consolidated    Placer    Mining 

Claim,  and  for  the  whole    thereof,  and    therein    de- 
scribed as  embracing  all  of  said  Section in 

Township of  Eange ,   M., 

containing  about  640  acres  of  land. 

14.  That  in  and  by  said  application  for  patent, 
respondent    herein    wrongfully,  falsely  and  fraudu- 
lently set  up,  alleged  and  claimed  that  it,  said  re- 
spondent, was  and  is  the  owner  and  in  possession  and 
entitled  to  the  possession  of  the  whole  of  the  said 

alleged Consolidated  Placer  Mining  Claim, 

embracing  all  of  said  Section ..........  and  the  said 


COMPLAINT— AD VERS'E   CLAIM.  335 

placer  mining  claim  and  location  of  your  orator  and 
his  said  co-tenants. 

15.  That  the  said  respondent  has  at  all  times  since 
maintained  and  prosecuted  and  now  does  maintain 
and  prosecute  its  said  false,  fraudulent  and  wrongful 
application  for  said  patent,  and  thereby  the  title  of 
your  orator,  and  his  said  co-tenants,  in,  and  to  said 
placer  mining  claim  and  location  hereinbefore  men- 
tioned, as  duly  located  by  said and  his 

said   associates,    is   impeached,    clouded   and   encum- 
bered and  the  value  of  the  estate  and  property  of 
your  orator  and  his  co-tenants  therein   are  greatly 
depreciated  to  the  great  and  irreparable  damage  of 
your  orator  and  his  said  co-tenants. 

16.  Your  orator  further  showeth  unto  your  Honors 
and  avers  that  heretofore,  to-wit :  on  the . .....  day  of 

,  19 .  . ,  and  within  the  60  days'  period  of 

newspaper  publication  of  the  said  respondent's  notice 
of  application  for  patent,  your  orator  filed  his  adverse 
claim  against  the  issuance  of  such  patent  to  the  said 

respondent  for  its  said  alleged  and  pretended 

Consolidated  Placer  Mining  Claim,  as  so  applied  for, 
with  the  Register  of  the  United  States  Land  Office 
aforesaid,  that  being  the  Land  Office  District  in  which 
the  said  alleged  and  pretended Consoli- 
dated PJacer  Mining  Claim  is  situated,  said  adverse 
claim  showing  the  nature,  boundaries  and  extent  of 
said  adverse  claim;    and  your  orator  brings  this  his 
suit  within  30  days  after  the  filing  thereof,  for  the 
purpose  of  determining  said  adverse  claim  and  the 
right  of  possession  to  the  said  placer  mining  claim 

so  located  as  aforesaid  by  said. .and  his  said 

associates. 

IN  CONSIDERATION  WHEREOF,  and  for  as  much  as 
your  orator  is  remediless  in  the  premises,  at  and  by 
the  strict  rules  of  the  common  law,  and  is  only  reliev- 


336  FORMS— LEGAL  PROCEEDINGS. 

able  in  a  court  of  equity,  where  matters  of  this  kind 
are  properly  recognizable  and  relievable; 

To  the    end  therefore,  that    the    said    respondent, 

,  be  compelled  to  answer  all  and  singular 

the  premises  in  this  bill,  (but  not  under  oath,  answer 
under  oath  being  hereby  expressly  waived)  and  that 

it  may  be  decreed  that  said  respondent,   , 

has  no  estate,  interest,  possession  or  right  of  posses- 
sion in  or  to  said  alleged Consolidated 

Placer  Mining  Claim  in  said quarter  of 

said  Section in  Township of  Range 

M.  and  the  said  placer  mining  claim  and 

location  hereinbefore  and  in  paragraph  4  hereof,  par- 
ticularly described,  as  the  property  and  estate  of 
your  orator  and  his  said  co-tenants  and  the  said  min- 
eral substances  in  said quarter  of  said  sec- 
tion   contained,  or  either,  or  any  of  them ; 

and  that  your  orator  be  deemed  to  be  the  owner,  sub- 
ordinate to  the  rights  of  his  co-tenants,  and  subject 
to  the  paramount  title  of  the  United  States  of  Amer- 
ica and  lawfully  in  and  entitled  to  the  possession  of 
the  placer  mining  claim  and  location  in  said  para- 
graph 4  particularly  mentioned  and  described,  and 
of  each  and  every  the  mineral  deposits  and  mineral 
substances  therein  contained,  and  that  your  orator's 
title  thereto  and  to  each  and  all  thereof  and  to  the 
possession  thereof  be  quieted  and  confirmed  as  against 
said  respondent  and  all  persons  claiming  by,  through 
or  under  it;  and  that  said  respondent  has  not,  and 
never  has  had,  any  estate,  possession,  right  of  pos- 
session, title  or  interest  whatsoever  of,  in  or  to  said 
quarter  of  said  Section in  Town- 
ship   of  Range M.,  or  any 

part  or  portion  thereof,  and  that  said  respondent  be 
forever  barred  from  asserting  or  claiming  any  estate, 
right,  interest  or  right  of  possession  therein,  or  to  any 
part  or  parcel  thereof,  or  to  any  mining  claim  or  loca- 


COMPLAINT  IN  EJECTMENT.  337 

tion  therein ;  and  that  your  orator  may  have  such 
other  and  further  relief  as  the  nature  of  his  case 
may  require  and  as  to  your  Honors  shall  seem  meet; 

May  it  please  your  Honors  to  grant  unto  your 
orator  the  most  gracious  writ  of  subpoena  of  the 
United  States  of  America,  directed  to  the  said  re- 
spondent, said ,  thereby  commanding  it  to 

personally  appear  before  this  Honorable  Court,  and 
then  and  there  upon  a  day  to  be  named  therein  under 
a  certain  penalty  to  be  limited  to  make  answer  to  the 
premises,  and  to  further  abide  by  and  perform  such 
order,  direction  and  decree  therein,  agreeably  to 
equity  and  good  conscience. 

And  your  orator  will  ever  pray,  etc. 

COMPLAINT  IN  EJECTMENT.      (U.  S.  Court.) 

Form  No.  23. 

(Precedent  in  Glacier  v.  Willis,  130  U.  S.  471.) 

(Title  of  court  and  cause.) 

The  plaintiff  complains  and  alleges  that  it  is  a  cor- 
poration organized  and  existing  under  the  laws  of  the 

State  of ,  and  is  a  citizen  of  the  State  of 

,  that  the  defendants  are,  and  each  of 

them  is  a  citizen  of  the  State  of ,  and  a 

resident  of .in  the  County  of 

and  State  last  aforesaid  and"  that  the  property  in  con- 
troversy exceeds  the  value  of  two  thousand  dollars.* 

The  plaintiff  further  alleges  that  on  the 

day  of ,  19 . . ,  one and  one 

,  each  being  a  citizen  of  the  United 

States,  went  upon  the  public  domain  of  the  United 
States,  theretofore  wholly  unoccupied  and  unclaimed, 
and  located  on  said  day  a  tunnel  and  tunnel-site  at 
the  base  of Mountain,  in 

*  See  §  17,  ante. 


338  FORMS— LEGAL  PROCEEDINGS. 

Mining  District,  County  of ,  State  of 


That  afterwards,  and  on  the  same  day,  they  marked 
the  boundaries  of  their  said  location  and  commenced 

to  run  a  tunnel  into  said Mountain,  and,  after 

complying  with  the  laws  of  the  United  States  and  the 

laws  of  the  State  of ,  and  the  local  rules 

and  regulations  of  said Mining  District, 

they  caused  to  be  made  out  and  recorded  in  the  Re- 
corder's office  of  the  County  of aforesaid, 

a  location  certificate  of  said  tunnel  claim,  which  said 
certificate  described  the  location  and  boundaries  of 
said  tunnel  claim. 

That  from  the  day  of  said  location  until  the  ouster 
hereinafter  set  forth  the  said  locators  of  said  tunnel 
claim,  and  their  grantees  remained  continuously  in 
possession  of  the  said  tunnel  claim,  and  have  expended 
thereon  more  than  the  sum  of dollars. 

That  plaintiff  is  the  owner  of  said  tunnel  claim 
above  described  by  location  and  purchase,  and  is  now 
entitled  to  the  quiet  and  peaceable  and  exclusive  pos- 
session thereof  by  virtue  of  a  full  compliance  on  its 
part,  and  on  the  part  of  its  grantors,  with  the  laws, 
rules  and  customs  above  set  forth. 

That  the  plaintiff,  and  its  grantors  have  been  in  the 
peaceable  and  undisputed  possession  of  said  tunnel 
claim  by  virtue  of  said  location,  occupation,  pre- 
emption and  record  for  more  than years 

prior  to  the  ouster  hereinafter  complained  of. 

That  plaintiff  and  its  grantors,  for  more  than 

consecutive  years  prior  to  the  acts  of 

the  defendants,  hereinafter  mentioned,  paid  all  the 
taxes,  legally  or  otherwise  assessed  upon  said  tunnel 
claim,  and  have  worked  and  mined  the  same  from  said 

day  of ,  19 . . ,  up  to  the 

time  of  the  acts  of  the  said  defendants  hereinafter  set 
forth. 


COMPLAINT  IN  EJECTMENT.  339 

That  said  tunnel  claim,  so  located,  embraces ' 

valuable  lodes  or  veins  which  have  been  discovered, 
worked  and  mined  by  the  plaintiff  and  its  grantors. 

That  the  said  tunnel  claim  was,  by  its  locators, 

named  the tunnel  claim,  and  is  described 

more  fully  as  follows, 

(Description.) 

Plaintiff  further  alleges  that  while  it  was  in  the 
quiet  and  peaceable  possession  of  said  tunnel  claim, 
and  every  part  thereof,  the  defendants  wrongfully, 
and  without  right,  and  without  consent  of  the  plain- 
tiff, to  wit :  on  or  about  the day  of , 

19. .,  entered  upon  the  premises,  and  into  said  tunnel, 
so  run  by  plaintiff,  and  its  grantors  on  said  claim,  and 
wrongfully  and  unlawfully  ousted  the  plaintiff  there- 
from ;  claiming  said  tunnel  as  the (claim) . 

That  on  or  about  said  last  mentioned  date  the  de- 
fendants, without  right,  made  a  pretended  location  of 
a  lode  claim  across  said  tunnel  and  within  said  tunnel 
claim,  and  therein  wrongfully  ousted  the  plaintiff 
therefrom,  claiming  that  they  had  discovered  a  lode, 
which  they  called  the lode. 

That  the  defendants  ever  since  hitherto  unlawfully 
and  wrongfully  withheld  the  possession  of  the  said 
premises  and  tunnel  claim  from  the  plaintiff  to  its 
damage  in  the  sum  of . .  -. dollars. 

Wherefore,  plaintiff  demands  judgment  against  the 
defendants 

1.  For    the    recovery    of    the    possession    of    said 
tunnel,  tunnel-site  and  claim. 

2.  For   the   sum   of dollars,   damages 

for  the  wrongful  withholding  thereof. 

3.  For  costs  of  suit. 


340  FORMS — LEGAL  PROCEEDINGS. 

-    COMPLAINT— UNDERGROUND    TRESPASS.      (At    Law.) 

Form  No.  24. 

(Title  of  court  and  cause.) 

The  plaintiff  in  the  above-entitled  action  complains 
of  the  defendant,  and  for  a  cause  of  action  alleges  :— 

1.  That  the  plaintiff  is  now  and  at  all  times  since 

the  year has  been  a  corporation  organized 

and  existing  under  and  by  virtue  of  the  laws  of  the 

State  of. ,   having  its  principal  place  of 

business  at ,  in  the  State  of , 

and  engaged  in  the  business  of  mining  at 

Mining  District,  in  the  County  of ,  in  the 

State  last  aforesaid. 

2.  That  the  plaintiff  now  is  and  during  all  the 

time  for  more  than years,  last  past,  has  been 

the  owner  of  and  entitled  to  the  possession  of  that 

certain  lode  mining  claim  known  as  and  called 

mining  claim,  situated  in  the Mining  Dis- 
trict, in  the  County  of ,  State  of , 

and  more  particularly  described  as  follows, 

(Description.) 

3.  Plaintiff  further  alleges  that  a  vein,  lode  or 

ledge  of  quartz  rock  in  place,  bearing and 

is  found  in  said lode  min- 
ing claim,  so  owned  by  the  plaintiff.     That  the  same, 
in  its  longitudinal  course  or  strike  passes  into  the  said 

lode  mining  claim  through  the 

end  line  thereof  and  extends  (through)  the  said  min- 
ing claim  in  a direction,  and  lengthwise 

of  said  mining  claim  (and  passes  out  of  said  mining 

claim  through  the end  line  thereof)  and 

that  the  top  or  apex  of  said  vein,  lode  or  ledge  lies 
(throughout  the  entire  length)  of  said  mining  claim 
inside  the  surface  lines  thereof,  as  aforesaid,  extended 
downward  vertically.     That  said  vein,  lode  or  ledge, 
in  its  downward  course  departs  from  a  perpendicular 


COMPLAINT— UNDERGROUND  TRESPASS.  341 

at  an  angle  of  about degrees  from  the  hori- 
zontal, said  departure  from  a  perpendicular  being  in 

a direction ;  and  that  the  general  strike  or 

course  of  said  vein,  lode  or  ledge  is  nearly,  or  quite, 
coincident  with  the  surface  side  lines  of  the  said  min- 
ing claim;  and  that  by  reason  of  the  foregoing  the 
plaintiff  is  now,  and  at  all  times  hereinafter  men- 
tioned, has  been  the  owner  of,  and  entitled  to  the  ex- 
clusive possession  of  the  said  vein,  lode  or,  ledge,  and 
so  much  of  the  said  vein,  lode  or  ledge  as  the  top  or 
apex  whereof  lies  inside  of  said  surface  boundaries  as 
aforesaid,  throughout  its  entire  depth;  and  that  the 
plaintiff  has,  at  all  times,  been  in  possession  of  said 
mining  claim  and  said  vein,  lode  or  ledge,  as  above  de- 
scribed, save  and  except  as  it  has  been  ousted  and 
ejected  by  the  defendant,  as  hereinafter  alleged. 

4.  That  the  said  vein,  lode  or  ledge,  so  having  its 
top  or  apex  within  the  surface  lines  of  plaintiff's  said 
mining  claim,  as  aforesaid,  in  its  course  downward  be- 
tween vertical  planes  drawn  downward  through  the 
end  lines  of  said  mining  claim  continued  in  their  own 
direction  and  in  its  departure  from  its  perpendicular 
as  aforesaid,  extends  to  a  great  depth,  to-wit:  to  a 

point  far  outside  of  and  to  the of  the  said 

vertical  side  line  of  said  mining  claim  and  to  a  point 
far of  and  below  and  beyond  the  work- 
ings of  the  defendant,  hereinafter  described,  and  con- 
tinues, in  its    downward    course    and    between    said 
planes  aforesaid  to  an  unknown  distance. 

5.  That  heretofore,  to-wit :  on  or  about  the 

day  of ,  and  while  the  plaintiff  was  the 

owner  of,  and  lawfully  possessed  of,  and  entitled  to 
the  possession  of  said  mining  claim  and  of  the  said 
vein,  lode  or  ledge  therein  and  the  ores  therein  con- 
tained, the  defendant  wrongfully  and  unlawfully  en- 
tered into  and  upon  that  part  and  portion  of  said 
vein,  lode  or  ledge,  which  in  its  downward  course  ex- 


342  FORMS— LEGAL  PROCEEDINGS. 

tends  outside  of  and  to  the of  the  vertical 

side  line  of  said  mining  claim  and  which  lies  between 
vertical  planes  drawn  downward  through  the  end  lines 
of  said  mining  claim,  so  continued  in  their  own  direc- 
tion that  the  same  will  intersect  said  exterior  portions 
of  said  vein,  lode  or  ledge  and  being  a  part  of  the 
same  vein,  lode  or  ledge  which  has  its  top  or  apex 
within  such  surface  lines  of  said  mining  claim,  afore- 
said, and  ousted  and  ejected  the  plaintiff  therefrom, 
and  wrongfully  took  and  carried  away  therefrom  and 
converted  to  his  own  use  large  and  valuable  quantities 
of  the  ores  in  the  said  vein,  lode  or  ledge  contained,  the 

property  of  the  plaintiff,  of  the  value  of 

dollars,  and  has  at  all  times  since  wrongfully  with- 
held, and  does  now  wrongfully  withhold  from  the 
plaintiff  the  possession  of  the  said  vein,  lode  or  ledge 

so  lying  to  the of  said side  line 

of  said. mining  claim  and  between  the 

planes  drawn  through  the  end  lines  of  said  mining 
claim,  as  aforesaid,  to  the  great  damage  of  the  plain- 
tiff in  the  sum  of .dollars. 

Wherefore,  the  plaintiff  demands  judgment  against 
the  defendant 

1.  For  the  recovery  of  the  possession  of  said  por- 
tion of  said  vein,  lode  or  ledge  so  as  aforesaid  wrong- 
fully withheld  by  the  defendant. 

2.  For  the  sum  of dollars,  the  value 

of  the  said  ores  taken  from  said  vein,  lode  or  ledge  by 
the  defendant,  as  aforesaid,  and  costs  of  suit. 

COMPLAINT — UNDERGROUND  TRESPASS.   (In  equity.) 

Form  No.  25. 

(Title  of  court  and  cause.) 

Comes  now  the  plaintiff  in  the  above  entitled  action 
and  complains  of  the  defendant  herein,  and  for  a  cause 
of  action  alleges : 


COMPLAINT— UNDERGROUND  TRESPASS.  343 

1.  That  the  defendant,  the  said Mining 

Company,  is,  and  was  at  all  the  times  hereinafter  men- 
tioned, a  corporation  organized  and  existing  under  the 

laws  of  the  State  of ,  having  its  principal 

place  of  business  at in  said  State  and  en- 
gaged in  the  business  of  mining  at Min- 
ing District,  in  the  County  of ,  and  State 

aforesaid. 

2.  That  on  the day  of , ,  19. ., 

plaintiff  was  and  ever  since  has  been,  and  now  is, 
the  owner  and  possessed  and  entitled  to  the  possession 
of  that  certain  parcel  of  mining  ground  situate  and 

being  in  the Mining  District,  in  the  County 

of ,  and  State  of ,  consisting 

of  those  two  certain  contiguous  and  adjoining  pieces 
of  mining  ground,  the  one  known  as . . Min- 
ing Claim  and  also  known  as .Lode  Claim 

and  in  the  system  of  United  States  surveys  for  patents 
for  mineral  lands  from  the  Government  of  the  United 

States  designated  as  Survey  No ,  and  also  so 

designated  in  a  certificate  of  purchase  therefor  from 
the  United  States  of  America,  which  was  issued  on  the 

day  of . . ,  19 . . ,  to  the  plaintiff 

by  the  Eeceiver  of  the  United  States  Land  Office  at 

,  in  the  State  of ,  and  the 

other  known  as Mining  Claim,   and  de- 
scribed as  follows,  to-wit :  - 

(Description.) 

together  with  all  the  veins,  lodes,  ledges,  dips,  de- 
posits and  bodies  of  ore,  rock  and  earth  bearing 

and and  other  precious  metals. 

3.  That  said  mining  claim  and  ground  lastly  here- 
inbefore mentioned  adjoins  said Mining 

Claim  or  ground  on  the and  that  said  two 

lode  claims  have  been  worked  by  plaintiff  since  about 


344          FORMS — LEGAL  PROCEEDINGS. 

,  and  form  and  constitute  but  one  parcel 

of  mining  ground  and  one  property. 

4.  That  said  mining  ground  contains  valuable  min- 
eral deposits,  lodes,  ledges,  dips,  deposits  and  veins, 

rock  and  earth  bearing and and  other 

precious  metals ;  and  the  said  mineral  deposits,  lodes, 
ledges,   dips,   deposits  and  veins  constitute  the  sole 
value  of  said  mining  ground. 

5.  That  plaintiff  was  at  all  the  times  hereinafter 
mentioned,  and  now  is  engaged  in  mining  and  devel- 
oping the  said  mining  ground,  lands  and  premises, 
and  extracting  therefrom  the  said  ores  and  minerals ; 
and  constructed  at  great  expense,  and  has  and  had 
thereon    mines,   drifts,   cuts,   excavations   and    other 
works  necessary  for  and  adapted  to  the  work  of  min- 
ing and  developing  the  said  mining  ground. 

6.  That  heretofore,  and  on  or  about  the 

day  of ,  19 . . ,  the  said  defendant,  said 

Mining   Company,   by   itself   and   its 

agents,  servants  and  employees,  forcibly  and  wilfully, 
against  the  will  and  without  the  consent  of  the  plain- 
tiff entered  into  and  upon  the  said  mining  ground 
hereinbefore  described,  and  commenced  to,  and  then 
and  thereafter,  for  the  purpose  of  mining  the  said 
ground  and  extracting  the  ores  therefrom,  cut,  made 
and  excavated  certain  drifts  and  openings  into  and 
under  and  upon  the  said  mining  ground,  and  invaded 
the  drifts,  excavations  and  mines  made  thereon  by 
the  plaintiff,  and  ever  since  last  mentioned  date  has 
intruded  and  trespassed  upon  the  said  mining  ground, 
drifts,  excavations  and  mines  of  the  plaintiff ;  and  has 
dug  up  and  extracted,  taken  out  of  and  removed  from 
said  mining  ground  and  converted  to  its  own  use  large 
quantities   of  the  mineral   deposits,   earth   and   ores 

bearing and other  precious 

metals  and  the  mineral  deposits  therein  of  the  value 
of dollars,  and  upwards,  and  will  thereby 


COMPLAINT— UNDERGROUND   TRESPASS.  345 

take  from  the  said  mining  ground  the  entire  value 
thereof,  to  the  great  and  irreparable  injury  of  the 
plaintiff. 

8.  That  unless  the  said  defendant,  its  agents, 
servants  and  employees  are  restrained  and  enjoined 
from  intruding  and  trespassing  upon  the  said  mining 
ground,  and  making  cuts,  openings  and  excavations 
therein  and  digging  up,  extracting,  removing  and 
carrying  away  from  said  mining  ground  said  mineral 

deposits,  rock,  ores  and  earth  bearing and 

and  other  precious  metals,  the  value  and 

substance 'of  said  mining  ground  will  be  destroyed, 
and  this  plaintiff  will  suffer  irreparable  injury. 

Wherefore,  plaintiff  prays  that  this  Honorable 
Court  grant  to  him  a  writ  of  injunction  pendente  lite 
issuing  out  of  and  in  accordance  with  the  rules  and 
practice  of  this  Honorable  Court  to  be  directed  to  the 
said  defendant Mining  Company,  to  re- 
strain it,  and  its  agents,  servants,  employees  and  con- 
federates, from  entering  into  or  upon  the  mine,  or 
mines,  mining  ground,  lode,  dips,  drifts,  cuts,  exca- 
vations or  works,  or  upon  any  part  of  the  land,  prop- 
erty and  premises  hereinbefore  particularly  described, 
and  from  working  or  mining  thereon,  or  making  or 
continuing  any  cut,  opening  or  excavation  on  or  in 
said  mining  ground,  or  upon  or  in  any  part  thereof,  or 
digging  up,  extracting,  or  removing  from  said  mining 
ground,  or  any  part  thereof,  any  mineral,  mineral  de- 
posit, ore,  rock  or  earth,  or  any  mineral  substance 
whatever,  whether  the  same  be  in  place,  or  heretofore 
severed  from  the  freehold,  and  from  in  any  manner 
hindering  or  obstructing  plaintiff,  or  his  agents,  serv- 
ants or  employees,  or  any,  or  either  of  them,  in  work- 
ing or  mining  upon  said  premises,  and  from  in  any 
manner  interfering  with  the  said  premises,  or  with 
anything  thereon ;  as,  also,  a  restraining  order  to  the 
same  effect  until  an  application  for  such  an  injunction 


346  FORMS — LEGAL  PROCEEDINGS. 

can  be  heard;  and  that  at  the  final  hearing  such  in- 
junction may  be  made  perpetual,  and  that  an  account 
be  taken  of  the  waste  committed,  and  for  such  other 
and  further  relief  as  to  this  Court  may  seem  just  and 
meet. 


FINDINGS   OP  PACT  AND   CONCLUSIONS   OP   LAW. 

Form  No.  26. 

(Precedent  in  Harrington  v.   Chambers,   3  Utah,   94.) 

(Title  of  court  and  cause.)  v 

This  cause  came  on  regularly  for  trial  on  the 

day  of ,  19. .,  before  the  above  entitled 

court,  sitting  without  a  jury. 

,  Esq.,  appeared  as  counsel  for  the 

plaintiff,  and Esqs.,  for  the  defend- 
ant. 

And  the  court  having  heard  proof  of  the  facts  al- 
leged in  the  complaint  and  other  pleadings  on  file 
herein,  and  the  arguments  of  the  respective  counsel 
herein,  and  this  action  having  been  submitted  to  the 
court  for  its  decision,  the  court  now  finds  the  follow- 
ing facts : 

Findings  of  fact. 

(1)  That  the  locators  of  the mining 

claim,  mentioned  in  the  complaint,  at  the  time  of  the 

location  of  said  claim,  viz.,  on  the day 

of    ,   19..,  at  the  "discovery  point"  of 

said  claim,  discovered  a  mineral-bearing  vein  or  lode 

and  the  claim  was  duly  recorded  on  the 

day  of ,19... 

(2)  That  soon  after  said  location,  to  wit,  in  the 

month  of ,  19 . . ,  the  locators  of  said 

mining  claim  marked  on  the  ground  the 

Note. — For  additional  findings  see  Yarwood  v.  Johnson,  29 
Wash.  643;  also,  Iron  Co.  v.  Campbell,  135  U.  S.  286. 


FINDINGS  OF  FACT.  347 

boundaries  of  said  claim  by  setting  stakes  at  the  cor- 
ners thereof. 

(3)  That  prior  to  the day  of , 

19 .  . ,  and  within    a    year    preceding    that    time,  the 
owners  of  said  claim  performed  labor  and  made  im- 
provements thereon  of dollars  in  value. 

(4)  That  each  year  thereafter,  up  to , 

19 . . ,  work  of  the  value  of dollars,  was 

done  on  said  claim  by  the  owners  thereof.  , 

(5)  That  during  the  year  beginning  on  the 

day  of ,  19 .  . ,  the  owners  of  the 

claim  were  also  the  owners  of  two  certain  claims  called 

respectively  the and ,  the 

adjoining  the   and  the 

adjoining  the mining  claim 

— and  that  with  a  view  to  the  future  working  and  de- 
velopment  of   all  three   of   said   claims,   the   owners 
thereof  located  what  is  called  the  "main  shaft/'  in  the 

surface  ground ;  that  such  shaft  is  in 

such  proximity  to  said mining  claim  that 

work  in  it  has  a  tendency  to  develop  said  claim  and 
said  shaft  was  located  and  intended  for  the  purpose  of 
developing  all  of  said  claims.     That  during  said  last- 
named  year  work  was  prosecuted  in  said  shaft,  and  by 

improvements  made  thereat,  exceeding  in  value 

dollars,  and  of  not  less  than .dollars  in 

value. 

No  work  was  done  in  said  year  after in 

19 . . ,  and  prior  to  the day  of , 

19 . . ,  in  the  surface  ground,  or  within  its  limits,  by 
the  owners  thereof. 

The  court  also  finds  that  the mining 

claim,  on  application  for  patent,  was  entered  and  paid 

for  at  the  United  States  Land  Office  at 

City,  ,  no  protest  having  been  made  prior 

to  ,  19 . . ,  but  no  patent  for  said  claim 

has  yet  been  issued. 


348          FORMS — LEGAL  PROCEEDINGS. 

(6)  That  at  the  time  this  action  was  commenced 

the  plaintiff's  were  in  possession  of  said 

mining  claim ;  that  by  the  admission  of  the  defendants, 
on  the  trial,  the  plaintiffs  at  the  commencement  of  this 
action  had  the  title  to  said  mining  claim  by  regular 

conveyances  from  the  locators ;  that  the 

Mining  Company  was  organized  as  a  corporation  on 

the day  of ,  19 . . ,  and  on  or 

about  the day  of ,  19 . . ,  re- 
ceived a  conveyance  from  said  plaintiffs  of  said  min- 
ing claim,  and  possession  thereof,  and  this  action  is 
prosecuted  in  the  interests  and  for  the  benefit  of  said 
corporation. 

(7)  Before  and  at  the  commencement  of  this  ac- 
tion the  defendants  claimed  an  interest  in  only  a  part 

of  the  premises  embraced  in  said .mining 

claim,  and  claimed  said  interest  adverse  to  said  plain- 
tiffs; that  said  adverse  consists    of,  and   was   based 

solely  on,  an  alleged  mineral  location  made  in , 

19. .,  called  the mining  claim,  which 

embraced  a  part  of  said mining  claim, 

described  in  the  complaint. 

(8)  On  the day  of ,  19. ., 

and  entered  upon  the 

ground  described  in  the  pleadings  as  the 

mining  claim,  and  marked  the  boundaries  as  set  forth 
in  the  answer,  and  posted  at  the  discovery  point  on  a 
vein  of  mineral-bearing  rock  in  place,  by  them  opened 
and  discovered,  a  notice  of  said  claim,  which  notice 
described  the  said  claim  set  forth  in  the  answer,  and 

afterwards,  on  the day  of , 

19 . . ,  filed  a  copy  of  said  notice  as  posted  for  record, 

in  the  office  of  the  recorder  of  the mining 

district  in  the  County  of ,  State  of 

;  which  notice  was  recorded  as  follows : 

(Here  insert  notice.) 


FINDINGS  OF  FACT.  349 

That  afterwards,  and  on  or  about  the day 

of   ,  19 . . ,  the  attention  of  the  persons 

who  had  recorded  the  said  notice  was  called  to  the 
discrepancy  between  the  record  and  the  notice  filed 
for  record,  said  person  having  in  the  meantime  ceased 
to  be  recorder  of  the  district,  and  thereupon  said  per- 
son changed  said  record  to  correspond  to  the  notice 
filed. 

(9)  That  the  locators  of  the  said. . . ., 

claim,  and  their  grantees  claiming  under  said  location, 
have  in  each  year  since  done  work,  and  made  improve- 
ments thereon  of  the  value  of  more  than 

dollars,  and  have  been  in  the  continuous  possession  of 
said  improvements. 

(10)  That  the  defendants,  by  conveyances  from 
the  locators  and  their  immediate  grantees,  at  the  time 
of  the  commencement  of  this  action,  have  acquired, 
and  still  have  the  record  title  to  said  claim,  and  own 
all  the  title  and  interest  therein  which  could  be  ac- 
quired from  said  locators,   and  by  subsequent  com- 
pliance with  mining  laws  and  customs. 

(11)  The  discovery  point  of  the claim, 

and  the  point  where  the  location  point  was  posted  is 
within  the  bounds  of  the mining  claim. 

(12)  That  on  the day  of , 

19 . . , claiming  the mining 

claim  was  forfeited  for  want  of  work  and  improve- 
ments, located  a  mining  claim  called  the , 

embracing  the  premises  in  dispute  in  this  action,  and 

all  that  part  of  the mining  claim  lying 

of  the   end  line  of  the 

claim. 

(13)  Said ,  on  said  day,  posted  a 

written  notice  of  location  on  a  lode  of  rock  bearing 
found  within  said  claim,  and  at  the  dis- 
covery  point.      Said  notice   described   the   claim  by 
reference  to  natural   objects  and  permanent  monu- 


350  FORMS— LEGAL  PROCEEDINGS. 

ments,  so  it  could  be  identified,  and  described  it  by 
metes  and  bounds,  and  said  notice  also  contained  the 
name  of  the  locator  and  date  of  location. 

.  (14)     Said on  the day  of 

,  19 . . ,  filed  a  copy  of  said  notice  of  loca- 
tion in  the  office  of  the  recorder  of  said 

Mining  District,  for  record,  where  the  same  was  duly 
recorded. 

(15)  Said  ,  and  his  grantee  of  said 

claim,  have  in  each  year  since  said  location,  done  wrork 
and  made  improvements  thereon  of  the  value  of  more 
than dollars. 

(16)  On  the   day  of , 

19 . . ,  the  said  .• conveyed  said 

claim  to  the  defendants,  who  have  since  owned  the 
same. 

As  conclusions  of  law  from  the  foregoing  facts,  the 
court  now  hereby  finds  and  decides: 

Conclusions  of  law. 

(1)  That  the  plaintiffs  at  the  commencement  of 
this  action  were  the  owners  and  in  the  possession  of 

the  mining  claim  called  the   mining 

claim,  which  was  then,  and  still  is,  a  valid  mining 
claim,  embracing  the  premises  described  in  the  com- 
plaint; subject  only  to  the  paramount    title  of    the 
United  States;   that  the  same  is  now  owned  and  held 

by  the Mining  Company  by  like  valid 

title  derived  from  the  plaintiffs  during  the  pendency 
of  this  action. 

(2)  That  the  defendants  have  no  title  or  interest 
in  said  premises,  and  had  none  at  the  time  this  action 
was  commenced. 

(3)  That  said  plaintiffs  or  their  grantees  are  en- 
titled to  judgments  or  decree  declaring  and  confirm- 
ing their  title  to  said mining  claim,  and 

the  premises  embraced  therein,  and  that  the  defend- 


INSTRUCTIONS.  351 

ants  have  no  right,  title,  or  interest  in  said  premises, 
or  any  part  thereof,  and  also  for  costs  of  suit. 

And  judgment  is  hereby  ordered  to  be  entered  ac- 
cordingly. 

Dated  this day  of 

INSTRUCTIONS.       (Annual    Expenditure.) 

Form  No.  27. 

(Precedent  in  Big  3  Co.  v.  Hamilton,  157  Cal.  130.) 

You  are  instructed  that  the  laws  of  the  United 
States  require  one  hundred  dollars'  worth  of  work  or 
improvements  annually  to  be  performed  or  made  on 
a  mining  claim.  Such  work  or  improvements  so  re- 
quired by  the  laws  of  the  United  States  may  be  done 
or  made  within  the  boundaries  of  such  claim,  or  such 
work  may  be  done  outside  the  boundaries  of  such 
claim  on  one  of  a  group  of  claims  adjoining  each  other 
and  owned  by  the  same  party,  if  done  in  pursuance 
of  a  system  of  development  and  if  the  same  has  a 
tendency  to  benefit  or  develop  each  claim  in  the 
group.  Work  done  on  one  of  a  group  of  mining 
claims  which  has  a  tendency  to  develop  or  benefit 
all  of  the  claims  in  the  said  group  inures  to  the  ben- 
efit of  each  and  all  of  said  claims,  even  though  the 
system  adopted  may  not  be  the  best  that  could  have 
been  devised  under  the  circumstances.  Improvements 
made,  such  as  the  construction  of  roads,  mills  or 
mining  machinery  for  the  working  and  operation  of 
an  entire  group  owned  by  one  party,  and  which  said 
improvements  tend  to  the  benefit  of  all  the  claims 
in  said  group  even  though  such  improvements  be  made 
outside  the  lines  of  any  of  such  claims.  If  you  believe 

that  in  the  year there  was  more  than 

dollars  worth  of  work  done  within  the  boundaries  of 

mining  claim  by  the    in 

this  case  or  any  one  acting  under  the and 

with  the consent,  and  that  such  work  was 


352  FORMS — LEGAL   PROCEEDINGS. 

done  in  pursuance  of  a  system  that  tended  to  the  de- 
velopment of  all  of  the  claims  claimed  by  the 

herein  in complaint,  and  tended  to  the 

development  and  benefit  of  all  such  claims,  then  the 
work  so  performed  was  sufficient  to  prevent  a  for- 
feiture of  any  of  said  claims  on  account  of  the  annual 

labor  or  improvement  requirements  of  the  year 

You  are  further  instructed  that  even  though  the  work 

done  on  said claim  in was 

not  of  the  value  of dollars,  still  if  you 

believe   from  the   evidence   that   improvements  were 

made  consisting  of and of 

as  great  a  value  as dollars,  which  taken 

in  connection  with  such  work  as  you  find  to  have  been 
done  on  the  claim,  under  such  conditions  as  those 
above  stated,  would  equal  or  exceed  the  sum  of 

dollars,  and  that  such  improvements 

were  of  such  a  character,  and  so  constructed  as  to  bene- 
fit and  tend  to  the  development  of  all  of  said  claims 
and  each  of  them,  then  the  court  instructs  you  that 
upon  those  facts  existing  there  was  no  forfeiture  of 
such  claims  or  any  of  them,  on  account  of  the  said 
annual  labor  or  improvement  requirements.  It  is  not 
necessary  that  a  party  in  doing  the  work  on  a  claim  or 
on  a  system  for  the  benefit  of  all  claims  held  by  such 
party  and  contiguous  to  each  other  shall  be  the  same 
specifically  as  annual  labor  or  assessment  work ;  but  if 
such  work  is  done  in  good  faith,  and  is  equal  in 
amount  to  the  work  required  to  be  done  by  the  act  of 
Congress  then  the  same  will  be  sufficient  to  prevent  a 
forfeiture. 


INSTRUCTIONS.  353 

INSTRUCTIONS.      (Marking  Boundaries.) 

Form  No.  28. 

(Precedent  in  Willeford  v.  Bell  (Cal.),  49  Pac.  6.) 

The  jury  are  instructed  by  the  court  that  the  mining 

claim  of  the ,  in  order  to  be  valid,  must 

have  been  distinctly  marked  upon  the  ground,  so  that 
its  boundaries  could  be  readily  traced,  on  or  before 

the  day  of  ,  19. ..  The 

law  requires  this  marking  of  the  claim  upon  the 
ground  to  be  done  in  such  manner  that  any  person  of 
reasonable  intelligence  may  go  upon  the  ground  and 
readily  trace  the  claim  out,  and  readily  find  the  bound- 
aries and  limits  of  the  claim,  without  instructions,  ad- 
vice, or  information  from  any  one  or  thing  other  than 
the  marking  upon  the  ground ;  and  it  is  not  necessary 
nor  required  that  such  person  shall  have  a  copy  of  the 
notice  of  location  or  necessarily  use  it  in  the  tracing 
the  boundaries  of  the  claim,  but  where  such  notice  is 
posted  upon  the  claim,  and  constitutes  a  part  of  the 
marking  of  the  claim  upon  the  ground,  it  may  be  used 
as  a  part  of  the  means  by  which  the  boundaries  of  the 
claim  can  be  traced. 

And  if  you  believe  from  the  evidence  that  the 

,  prior  to  the day  of , 

19 . . ,  failed  to  so  mark  his  claim  upon  the  ground  so 
that  any  person  of  reasonable  intelligence  could  go 
upon  the  ground,  either  with  or  without  a  copy  of  the 
notice  of  location  and  readily  trace  the  claim  out,  and 
find  its  boundaries  and  limits  your  verdict  should  be 
that  the  claim  was  not  so  marked  on  the  ground  that 
its  boundaries  could  be  readily  traced. 


(Precedent  in   Charlton  v.   Kelly,   156   Fed.   433.) 

You  are  instructed  that  a  claim  may  be  marked 
upon  the  ground  by  stakes  or  other  permanent  mon- 


354  FORMS — LEGAL   PROCEEDINGS. 

uments,  but  you  are  instructed  that  the  law  requires 
a  claim  to  be  so  distinctly  marked  upon  the  ground 
that  its  boundaries  can  be  readily  traced.  The  re- 
quirements of  the  statute  in  this  respect  are  not  nec- 
essarily fulfilled  by  merely  setting  stakes  at  each  of 
the  corners  of  the  claim,  and  at  the  center  of  the  end 
lines,  unless  the  topography  of  the  ground  and  the 
surrounding  conditions  are  such  that  a  person  accus- 
tomed to  tracing  lines  of  mining  claims  can,  after 
reading  a  description  of  the  claim  in  the  posted  or 
recorded  notice  of  location  or  upon  the  stakes,  by  a 
reasonable  and  bona  fide  effort  to  do  so,  find  all  the 
stakes  and  thereby  readily  trace  the  boundaries; 
where  the  country  is  broken,  or  the  view  from  one 
stake  or  monument  to  another  is  obstructed  by  inter- 
vening timber  or  brush,  it  may  be  necessary  to  blaze 
trees  along  the  line,  or  cut  away  the  brush,  or  set 
more  stakes  at  such  distances,  that  they  may  be  seen 
from  one  to  the  other,  in  a  way  to  indicate  the  lines 
so  that  the  boundaries  can  be  readily  traced.  But" 
it  is  not  for  the  court  to  say  what  is  a  sufficient  mark- 
ing of  the  boundaries.  It  is  your  duty  to  determine, 
from  all  the  evidence  in  the  case  and  from  the  topog- 
raphy of  the  ground  in  question,  whether  or  not  a 
sufficient  marking  of  the  boundaries  of  the  claim  by 

the was  made  so  that  the  same  could  be 

readily  traced  by  a  person  making  a  reasonable  effort 
to  do  so.  If  you  find  from  the  evidence  in  this  case 
that  this  location  was  so  definitely  marked  on  the 

ground  by  the or agents  that 

its  boundaries  could  be  readily  traced,  then,  I  instruct 

you  that,  the ha ...  complied  with  this 

requirement  of  the  law.     If  not,  then  I  instruct  you 

that ha.  .  .failed  in  one  of  the  essentials 

of  a  valid mining  location,  and  that  your 

verdict  must  be  for  the. . 


INSTRUCTIONS'.  355 

INSTRUCTIONS.      (Discovery — Lode.) 

Form  No.  29. 

(Precedent  in  Larkin  v.  Upton,  144  U.  S.   19.) 

The  apex  of  a  vein  or  lode  is  the  highest  point 
thereof,  and  may  be  at  the  surface  of  the  ground  or  at 
a  point  below  the  surface.  When  the  vein  or  lode  does 
not  crop  out,  but  is  what  is  called  a  blind  vein  or  lode, 
the  apex  thereof  would  necessarily  be  below  the  sur- 
face of  the  ground;  and  in  this  case  you  are  instructed 

that  if  the  locators  of  the lode  vein,  at 

the  time  of  the  location  thereof,  found,  or  if  from  the 
work  done  by  others  prior  thereto,  they  could  see,  at 
any  point  within  the  limits  of  said  location,  a  lode  or 
vein  the  top  or  apex  of  which  was  within  the  said  lines 
of  their  location,  then,  in  such  case,  they  made  a  dis- 
covery of  a  lode  or  vein  such  as  the  law  requires  to  be 
made  to  entitle  them  to  locate  the  ground,  and  it  is 
wholly  immaterial  as  to  the  amount  or  quantity  of 
such  a  vein  or  lode  which  may  have  been  found 
within  the  limits  of  their  said  location ;  any  amount  of 
it  would  suffice,  however  small,  either  as  to  the  amount 
of  the  vein  or  its  apex  within  the  limits  of  the  said 
location. 

Note. — The  apex  of  a  vein  is  not  necessarily  a  point,  but 
often  a  line  of  great  length.  Larkin  v.  Upton,  ante. 

Form  No.  30. 

INSTRUCTIONS.       (Discovery — Placer.) 

(Precedent  in  Charlton  y.  Kelly,   156  Fed.  433.) 

If  you  shall  find  and  believe  from  the  evidence  in 
this  case  that found  the  colors  and  par- 
ticles of  gold  so  testified  to  by in  the 

on  the  surface  of  the  ground  in  dispute 

then  you  should  determine  whether  or  not  such  finding 
was  of  sufficient  character  and  found  in  such  places, 
and  under  such  conditions  as  to  constitute  a  discovery 
of  mineral  as  will  satisfy  the  law.  You  are  instructed 
that  mere  indications,  however  strong,  are  not  suf- 
ficient to  answer  the  requirement  of  the  statute. 


356  FORMS— LEGAL  PROCEEDINGS. 

INSTRUCTIONS.      (End  Lines.) 

Form  No.  31. 

(Precedent  in  Cheesman  v.  Hart,  42  Fed.  98.) 

The  court  further  charges  the  jury  at  the  instance 
of  the  plaintiffs  that  end  lines  as  described  in  the  loca- 
tion certificate  are  not  necessarily  in  law  the  end  lines, 
unless  they  actually  cross  the  actual  outcrop  of  the 
vein.  

The  statute  of  the  United  States  also  requires  that 
the  end  lines  of  the  claim  should  be  parallel  with  each 
other,  and  in  asserting  a  right  to  follow  the  vein  on  its 
dip  without  the  side  lines  of  their  location  into  plain- 
tiff's location  the  defendants  must  show  the  outcrop  or 
apex  of  such  vein  to  be  in  their  own  location  through- 
out the  ground  in  controversy,  being  the  extent  of  the 
locations  of  plaintiffs  and  defendants  parallel  to  each 
other. 

INSTRUCTIONS.      (Extra-lateral   right.) 

Form  No.  32. 

(Precedent  in  Flagstaff  Co.  v.  Tarbet,   98  U.  S.  463.) 

If  you  find  that during  the  time  men- 
tioned in  the  complaint,  to-wit :  from to 

,   (being  a  period  of  years, 

months,   and    days) ,  was  in 

possession  of mining  claim,  holding  the 

same  in  accordance  with  the  mining  laws  and  the  cus- 
toms of  the  miners  of  the  mining  district  and  that  the 
apex  and  course  of  the  vein  in  dispute  is  within  such 
surface — then,  as  against  one  subsequently  entering, 
he  is  deemed  to  be  possessed  of  the  land  within  his 
boundaries  to  any  depth,  and  also  of  the  vein  in  the 
surface  to  any  depth  on  its  dip,  though  the  vein  in  its 
dip  downward  passes  the  side  line  of  the  surface 
boundary  and  extends  beneath  other  and  adjoining 


ORDER  TO  SHOW  CAUSE.  35? 

lands,  and  a  trespass  upon  such  part  of  the  vein  on  its 
dip,  though  beyond  the  side  surface  line,  is  unlawful 
to  the  same  extent  as  a  trespass  on  the  vein  inside  of 
the  surface  boundary.  This  possession  of  the  vein 
outside  of  the  surface  line,  on  its  dip  is  limited  in  two 
ways — by  the  length  of  the  course  of  the  vein  within 
the  surface;  and  by  an  extension  of  the  end  lines  of 
the  surface  claim  vertically,  and  in  their  own  direc- 
tion, so  as  to  intersect  the  vein  on  its  dip,  and  the  right 
of  a  possessor  to  recover  for  trespass  on  the  vein  is 
subject  to  only  these  restrictions. 

INSTRUCTIONS.      (Forfeiture.) 

Form  No.  33. 

(Precedent  in  Big  3  Mg.  Co.  v.  Hamilton,   157   Cal.   130.) 

You  are  instructed  that  the  law  requires  clear  and 
convincing  evidence  to  support  the  forfeiture  of  a 
claim  duly  located  and  worked  in  good  faith  and  if 
the  evidence  does  not  satisfy  you  by  a  clear  prepon- 
derance thereof  that  the  plaintiff  failed  to  perform 
the  necessary  work,  then  it  follows  that  the  plaintiff 
did  not  forfeit  the  said  claim. 

ORDER   TO    SHOW   CAUSE   AND    RESTRAINING    ORDER. 
(Underground  trespass.) 

Form  No.  34. 

(Title  of  court  and  cause.) 
Upon  reading  and  filing  the  complaint  herein  (with 

the  affidavit  of ,  in  support  thereof),  and 

on  motion  of ,  Esq.,   , 

Attorney  for  the  plaintiff. 

It  is  ordered 

that  the  defendant,   Mining  Company, 

show  cause,  if  any  it  has,  before  the  above  entitled 
court,  at    the    court-house    thereof,    in    the    City    of 


358  FORMS— LEGAL  PROCEEDINGS. 

,  in  the  County  of and 

State  of ,  on  the day  of 

,  19 . . ,  at  ....   o'clock,  in  the  forenoon 

of  that  day,  or  as  soon  thereafter  as  counsel  can  be 
heard,  why  an  injunction  pendente  lite  should  not 
issue,  restraining  and  enjoining  said  defendant, 

Mining  Company,  its  agents,  servants 

and  employees  and  confederates  from  entering  into 
or  upon  the  mining  ground  situate  and  being  in  the 

Mining  District,  County  of , 

and  State  of   ,  consisting  of  those  two 

certain  contiguous  and  adjoining  premises  or  mining 

ground,  the  one  known  as  the   mining 

claim  and  also  known  as lode  claim  and 

in  the  system  of  United  States  Surveys  for  patents  for 
mineral  lands  from  the  Government  of  the  United 
States  designated  as  Survey  No. . .  .  and  also  so  desig- 
nated in  a  certificate  of  purchase  from  the  United 

States  of  America,  which  was  issued  on  the 

day  of , ,  19 . . ,  to  the  plaintiff  by  the 

Receiver  of  the  United  States  Land  Office  at , 

in  the  State  of ,  and  the  other  described  as 

follows,  to  wit:  ...      N 

(Description.) 

and  from  entering  into  or  upon  the  mine  or  mines, 
lodes,  drifts,  cuts,  excavations  or  works,  or  any 
thereof,  on  said  mining  ground  or  into  or  upon  any 
part  of  said  ground,  and  from  working,  or  mining,  or 
making,  or  continuing  any  cut,  opening  or  excavation 
on,  or  in  said  mining  ground,  or  on  or  in  any  part 
thereof,  or  digging  up,  extracting,  taking,  or  removing 
from  said  mining  ground,  or  any  part  thereof,  any 
mineral,  mineral  deposit,  ore,  rock  or  earth,  or  any 
mineral  substance  whatever,  whether  the  same  be  in 
place,  or  severed  from  the  freehold;  and  from  in  any 
manner,  hindering  or  obstructing  plaintiff,  or  his 
agents,  servants  or  employees,  or  any,  or  either  of 


ORDER  TO  SHOW  CAUSE.  359 

them,  in  working  and  mining  upon  said  premises,  and 
from  in  any  manner  interfering  with  said  premises, 
or  with  anything  thereon ;  such  cause  to  be  shown  on 

said  complaint  ( and  on  the  affidavit  of , 

thereto  annexed)  and  to  be  herewith  served. 

And  it  is  further  hereby  ordered  that  in  the  mean- 
time, and  until  the  hearing  upon  the  foregoing  order 
to  show  cause  and  the  further  order  of  this  court,  the 

said  defendant,  Mining  Company,  its 

agents,  servants  and  employees,  and  each  and  every 
of  them,  be,  and  they  are  hereby  enjoined  and  re- 
strained and  ordered  to  refrain  and  desist  from  enter- 
ing into  or  upon  the  said  mining  ground,  or  any  part 
thereof,  in  the  foregoing  order  to  show  cause  men- 
tioned and  designated;  and  from  entering  into,  or 
upon,  the  mine  or  mines,  lodes,  dips,  cuts,  excavations, 
or  works,  or  any  part  thereof,  on  said  mining  ground ; 
and  from  working  or  mining,  or  making,  or  continuing 
any  cut,  opening,  or  excavation  on,  or  in  said  mining 
ground;  or  digging  up,  or  extracting,  taking  or  re- 
moving from  said  mining  ground,  or  any  part 
thereof,  any  mineral,  mineral  deposit,  ore,  rock  or 
earth,  or  any  mineral  substance  whatever,  whether  the 
same  be  in  place  or  severed  from  the  freehold;  and 
from  in  any  manner  hindering  or  obstructing  plain- 
tiff, or  his  agents,  servants  or  employees,  or  any,  or 
either  of  them,  in  working  and  mining  upon  said 
premises,  and  from  in  any -manner  interfering  with 
said  premises,  or  with  anything  thereon,  upon  the  said 
plaintiff  giving  bond  in  the  sum  of dollars. 

And  it  is  further  hereby  ordered  that  any  and  all 
affidavits,  depositions  and  documents  to  be  used  by 
defendant  on  the  hearing  of  said  order  to  show  cause 
shall  be  served,  by  copy,  on  the  attorney  for  the 

plaintiff  at  least days  before  the  hearing  of 

said  order. 

Dated ,19... 


360  FORMS — LEGAL  PROCEEDINGS. 

ORDER   FOR   SURVEY,   ETC.      (Underground   trespass.) 

Form  No.  35. 

(Precedent  in  St.  Louis  Co.  v.  Montana  Co.,  9  Mont.  288;  State 
v.  Anaconda  Co.,  26  Mont.  396.) 

(Title  of  court  and  cause.) 

This  matter  coming  on  to  be  heard  upon  the  peti- 
tion for  an  order  for  survey,  examination,  and  inspec- 
tion of  all  of  the  shafts  and  underground  workings  in 

the  and  lode  claims,  or 

connected  therewith,  and  an  order  to  show  cause  hav- 
ing heretofore  been  issued  and  duly  served  upon  said 

Mining  Company ;  and  said  defendant 

appearing  by  counsel;  and  said  petition  having  been 
duly  heard  and  considered  upon  the  return  of  said 
order  to  show  cause  upon  evidence  introduced  by  both 
parties,  the  court  finds  that  it  is  necessary  that  the 
petitioner  have  a  survey  and  inspection. 

It  is  therefore  ordered  that  you,  the  said 

Mining  Company,  give  to ,  the  petitioner 

herein,  a  survey,  examination  and  inspection  of  all 
of  the  shafts  and  underground  workings  contained 

within  the and lode  claims, 

situate  in Mining  District,  County  of 

,  State  of ,  and  of  all  the 

underground  workings  connected  therewith  and  ex- 
tending into  the ,  and lode 

claims. 

It  is  further  ordered  that  ,  the  peti- 
tioner herein  make  such  survey,  examination  and  in- 
spection commencing  on  the day  of , 

19 . . ,  and  that  you,  the  said Mining 

Company,  at  all  the  times  during  the  said  period*  upon 

the  demand  of  said ,  lower  and  hoist  him 

through  said  shafts  and  permit  him  to  enter  said  un- 
derground workings;  that  you  remove  all  bulkheads 
and  obstructions  which  may  be  necessary  to  have  re- 


ORDER  FOR  SURVEY.  361 

moved  to  permit  such  survey,  examination  and  in- 
spection. 

That  said  work  of  survey,  examination  and  inspec- 
tion shall  be  completed  within days  from  the 

date  of  this  order  unless,  for  good  cause,  the  court 
shall  order  a  longer  time  to  be  used. 

Said ,  petitioner  herein  shall  be  re- 
sponsible for  all  damage  done  in  making  said  survey, 
examination  and  inspection. 

The  survey,  examination  and  inspection  by  the  said 

shall  be  confined  within  the  vertical 

planes  of  the  end  lines  of and 

lode  claims,  except  so  far  as  it  may  be  necessary  to 
run  lines  in  underground  workings  outside  of  such 
planes  in  order  to  complete  an  accurate  survey  of  said 
workings  within  the  said  end  lines.  Such  survey  to 
be  conducted  so  far  as  possible  without  interference 
with  the  regular  and  orderly  working  and  operation 

of  the  said and lode  claims, 

or  the  employees  of  said Mining  Com- 
pany in  the  discharge  of  their  various  duties ;  and  the 

engineers  of  the  said shall  not  dispose 

of,  nor  sell  to  any  one  any  plan  or  section  of  said 

and lode  claims ;  or  any 

matter  or  data  obtained  or  resulting  from  such  survey, 

except   to ,   its  agents   and   attorneys. 

The  surveyors  of  said are  not  to  enter 

said and  . . . . lode  claims  un- 
less accompanied  by  three  representatives,  appointed 

by  said Mining  Company,  to  accompany 

them,  unless,  after  reasonable  notice,  not  to  exceed 

such  persons  shall  fail  to  attend.     The 

persons  so  hereinbefore  authorized  to  make  such  sur- 
vey shall  not  take  nor  remove  from  said 

and lode  claims  any  samples  of  ore  or 

minerals  at  any  point  therein,  but  they  shall  be  allowed 
to  examine  and  trace  the  walls  of  the  vein  or  fissure ; 


362  FORMS— LEGAL  PROCEEDINGS. 

and  for  this  purpose  they  shall  be  allowed  to  use  the 
pick  and  remove  such  material  as  shall  enable  them  to 
make  such  survey,  examination  and  inspection.  A 
copy  of  this  order  shall  be  sufficient  notice  to  said 

Mining  Company,  its  agents,  servants, 

officers  and  employees  of  the  right  of  said , 

and  the  persons  named  in  this  order  to  make  said  sur- 
vey, examination  and  inspection,  and  to  enter  the 
premises  herein  described  for  such  purpose. 

Done  in  open  court  this 

day  of ,  19... 

PETITION  FOR   SURVEY,   ETC.      (Underground  trespass.) 

Form  No.  36. 

(Precedent  in   State  v.  Anaconda  Copper  Co.,   26  Mont.   396.) 

(Title  of  court  and  cause.) 

Comes  now  and  respectfully  alleges 

and  shows  to  the  court:  That  he  is  now,  and  for  a 
long  time  prior  hereto  has  been  the  lessee  from  the 

owners  of  an  undivided of  the 

lode  mining  claim,  situated  in  the Min- 
ing District,  County  of ,  State  of , 

and  lying  adjacent  to  the and 

lode  claims  on  the  and  entitled  to  be- 
come the  purchaser  of  said  portion'  of  said  lode  claim 
under  and  by  virtue  of  an  agreement  from  the  owners 

thereof.  That  the Mining  Company  is  in 

the  possession  of  the and lode 

claims,  and  of  all  the  shafts  and  underground  work- 
ings therein. 

That,  as  petitioner  is  informed  and  believes,  certain 
underground  workings  have  been  made  by  said 

Mining  Company  into  the  said 

lode  claim.  That  there  are  certain  veins  or  ore  bodies 

which  have  their  tops  or  apices  in  the  said 

lode  claim  but  so  far  depart  from  a  perpendicular  in 


PETITION  FOR  SURVEY.  363 

their  downward  course  as  to  pass  into  the 

and lode  claims  beneath  the  surface 

thereof,  and  that  as  petitioner  is  informed  and  believes 

said Mining  Company  has  been  and  is 

now  engaged  in  extracting  valuable  ores  from  said 
lode  claims  and  the  veins  and  ores  be- 
longing thereto,  and  that  certain  of  the  underground 

workings  made  in  and  extending  from  the 

and lode  claims  are  upon  the,  veins  and 

ore  bodies  which  belong  to  said lode 

claim. 

That  the  only  means  of  access  to  said  underground 

workings  is  through  the  shafts  in  said 

and lode  claims  in  the  possession  of  said 

Mining  Company  and  the  underground 

workings  in  said  claims  and  extending  therefrom. 
That  it  is  necessary  for  your  petitioner  to  have  a  sur- 
vey, examination  and  inspection  of  all  of  the  shafts 

and  underground  workings  in  said and 

lode  claims  and  the  underground  work- 
ings extending  therefrom  or  connected  therewith,  in 
order  to  ascertain,  protect,  and  enforce  his  rights  to 

the lode  claim,  and  to  the  veins  and  ore 

bodies  belonging  thereto. 

That  on  the day  of ,  your 

petitioner  served  upon  said Mining  Com- 
pany a  demand  and  request  in  writing  of  which  Ex- 
hibit "A"  hereto  attached  and  hereof  made  a  part,  is 

a  copy,  but  that  said Mining  Company 

has  failed  and  refused  for  more  than days 

since  the  service  of  said  demand  and  request  upon  it 
to  grant  the  same  or  to  permit  your  petitioner  to  have 
the  survey,  examination  and  inspection  therein,  as  re- 
quested. 

That  as  your  petitioner  is  informed  and  believes  it 
will  be  necessary  for  him  to  have  access  to  said  shafts 
and  underground  workings  in  said , . , . . , , , , , , , ,  and 


364  FORMS— LEGAL  PROCEEDINGS. 

lode  claims  by  at  least per- 
sons, for  a  period  of days,  in  order  to 

make  a  proper  and  thorough  survey,  examination  and 
inspection  of  the  same. 

Wherefore,  your  petitioner  prays  an  order  of  this 

court,  or  the  judge  thereof,  requiring  the  said 

Mining  Company  to  appear  and  show  cause  why  an 
order  for  survey,  examination  and  inspection  of  said 

and   lode  claims,  and  of 

all  the  shafts  and  underground  workings  therein  con- 
tained, should  not  be  granted  to  him  in  accordance 
with  the  allegations  of  this  petition. 

VERDICT — ADVERSE   CLAIM. 

Form  No.  37. 

(Precedent  in  Bennet  v.  Harkrader,  158  U.  S.  441.) 

(Title  of  court  and  cause.) 
We,  the  jury  find  for  the 


Foreman. 


LEASES. 


ASSIGNMENT    OF    LEASE   AND    OPTION. 

Form  No.  38. 

(Precedent  in  Pollard  v.  Sayre,  45  Colo.  195.) 

For  and  in  consideration  of  the  sum  of 

dollars,  to  me  in  hand  paid,  by ,  the  re- 
ceipt whereof  is  hereby  acknowledged,  and  the  further 
sum  of dollars,  to  be  paid  to  me,  my  ex- 
ecutors, administrators,  or  assigns,  within 

months  from  the  date  hereof,  I  hereby  sell,  assign, 

transfer  and  convey  to  said the  within 

bond  and  lease  and  all  my  right,  title,  and  interest 
therein  and  all  my  right,  title  and  interest  in  and  to 


LEASE  WITH  PRIVILEGE  OF  PURCHASE.  365 

the  real  estate  therein  described.  The  deferred  pay- 
ment to  be  deposited  in  the bank,  to  the 

credit  of 

It  is  hereby  agreed  that  no  personal  liability  shall 
attach  to  said  for  said  deferred  pay- 
ment, and  that  it  shall  be  optional  with  him  whether 
he  shall  make  the  same ;  but  if  not  paid  then  all  rights 

acquired  by  said  by  virtue  hereof  in 

and  to  the  within  bond  and  lease  and  in  and  to  the 
real  estate  therein  described,  shall  become  forfeited 

and  all  payments  theretofore  made  by  said 

shall  be  likewise  forfeited  to  me  and  the  above  assign- 
ment and  conveyance  become  null  and  void. 

In  witness  whereof,  I  have  hereunto  set  my  hand 
and  seal  this day  of ,  19 ... 

LEASE  WITH  PRIVILEGE   OF   PURCHASE. 

Form  No.  39. 

(Precedent  in  Settle  v.  Winters,   2  Idaho   (Hasb.)    215.) 

This  Indenture,  with  privilege  of  purchase,  made 

and  executed  this  day  of ,  19 . . ,  by  and 

between . . . ,  the  parties  of  the  first  part, 

and ,  the  parties  of  the  second  part, 

Witnesseth: — That  the  said  parties  of  the  first  part, 

for  and  in  consideration  of   dollars  to 

them  in  hand  paid,  at  and  before  the  ensealing  and  de- 
livery of  these  presents,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  covenant  and  agree  to  and 
with  the  said  parties  of  the  second  part,  their  heirs  and 
assigns,  as  follows,  to  wit :  The  said  parties  of  the 
first  part  hereby  grant,  demise,  and  lease  to  the  said 
parties  of  the  second  part,  the  following  described 

property,  situate,  lying  and  being  in 

Mining  District,   County  of    ,   State  of 

,  and  more  particularly  described  as  f ol- 

lows,  to  wit:  (Description.) 


366  FORMS— LEASES. 

Also  that  certain  engine  and  boiler,  known  as  the 

,  now  lying  on  said from  the 

day  of ,  19 .  . ,  on  the  expira- 
tion of  a  certain  lease  of  the and 

mines,  executed  and  delivered  by  the  parties  of  the 

first  part  to and ;  or  in  the  event 

of  the  assignment  of  said  lease  to  the  parties  of  the 

second  part  before  the  said day  of , 

19. .,  then  from  the  date  of  such  assignment  until  the 
day  of ,  19 . . ,  upon  the  fol- 
lowing terms  and  conditions: 

That  said  parties  of  the  second  part,  so  long  as 
they  shall  deem  fit  to  hold  said  property,  and  to 
mine  and  extract  ore  therefrom  and  to  pay  the  said 

parties  of  the  first  part of  the  gross 

proceeds  in  manner  hereinafter  specified;  and  when 

the  sum  of dollars  shall  have  been  paid, 

either  out  of  the  proceeds  of  the  said  property  hereby 
leased,  or  otherwise,  by  the  said  parties  of  the  sec- 
ond part  to  the  parties  of  the  first  part,  the  said 
parties  of  the  first  part  hereby  covenant  and  agree,  for 
themselves,  their  executors,  administrators  and  assigns, 
to  and  with  said  parties  of  the  second  part,  their  heirs 
and  assigns,  to  convey  to  them  by  good  and  sufficient 
deed  all  of  the  above  described  property,  free  and 
clear  of  all  incumbrance  upon  such  payment,  provided, 

the  said  sum  of dollars  shall  have  been 

paid  on  or  before  the day  of , 

19... 

And  the  said  parties  of  the  second  part  hereby  cov- 
enant and  agree  to  enter  upon  said  property,  and  to 
mine  and  extract  ore  from  the  same  so  long  as  they 
shall  find  it  profitable ;  to  do  the  work  in  a  proper  and 
workmanlike  manner,  and  at  their  own  cost  and  ex- 
pense; and  to  hold  and  keep  said  property  free  and 
clear  of  all  costs,  charge  or  lien  for  the  working  of  the 
same ;  and  out  of  the  gross  proceeds  of  said  mines  to 


LEASE  WITH  PRIVILEGE   OF  PURCHASE.  367 

pay thereof ,  as  fast  as  taken  out,  to  said 

parties  of  the  first  part  in  a  manner  hereinafter  spec- 
ified; and,  upon  the  expiration  of  the  term  hereby 
granted,  to  surrender  up  the  possession  of  said  prem- 
ises, with  all  the  improvements,  to  the  said  parties  of 

the  first  part,  unless,  on  or  before  the  said 

day  of ,  19 . . ,  the  said  sum  of 

dollars,  shall  have  been  paid ;  and  in  the  event  of  the 
said  parties  of  the  second  part,  or  their  assigns,  failing 
to  comply  with  either  or  any,  of  the  foregoing  coven- 
ants, or  any  covenant,  promise,  or  thing  herein  con- 
tained, on  their  part  to  be  done,  kept,  or  performed, 
that  then  it  shall  be  lawful  for  said  parties  of  the  first 
part  to  re-enter,  possess,  and  enjoy  the  above  described 
property  and  premises,  and  every  part  thereof;  and 
the  said  parties  of  the  second  part  hereby  agree,  in  the 
event  of  such  non-performance  on  their  part,  to  sur- 
render possession  of  the  said  premises  upon  demand 
by  said  parties  of  the  first  part  claiming  their  right  to 
re-enter. 

It  is  hereby  mutually  covenanted  and  agreed  by  and 
between  the  parties  to  this  instrument  that  the  said 
parties  of  the  first  part  shall  have  the  right,  at  all 
times,  of  inspecting  the  said  mines  above  described, 
and  all  mining  operations  and  work  thereon ;  that  the 
said  parties  of  the  second  part  shall  have  the  right,  at 
any  time  to  stop  work  on  said  mines  when  they  shall 
find  or  deem  the  same  unprofitable ;  that,  in  working 
said  ores,  at  each  clean-up  the  said  parties  of  the 
second  part  shall  and  will  furnish  a  true  account  of  all 
ores  extracted  and  milled,  and  all  bullion  received,  to 
the  said  parties  of  the  first  part ;  that,  in  milling  said 
ores  so  taken  from  said  property,  the  said  parties  of 
the  first  part,  if  they  so  desire,  shall  have  an  equal 
right  with  said  parties  of  the  second  part,  in  milling 
the  ores,  cleaning  and  retorting  the  same,  weighing 
and  storing  the  bullion,  until  the  said  parties  of  the 


368  FORMS— LEASES. 

second  part  receipt  to  them  for of  the 

proceeds ;   it  being  expressly  understood 

that  upon  each  clean-up  the  said  parties  of  the  sec- 
ond part  are  to  receipt  to  the  said  parties  of  the 

first  part  that  they  own of  the 

same,  and  that  the  said  parties  of  the  second  part  hold 
the  same  for  them ;  and  the  said  parties  of  the  second 
part  are  then  to  dispose  of  the  bullion  to  the  best  ad- 
vantage, and  to  pay  to  the  parties  of  the  first  part 
of  the  proceeds  thereof  in  money;  cur- 
rency or  coin;  and  upon  such  payment  the  parties 
of  the  first  part  will  credit  said  purchase  price  of 

dollars,  with  the  sum  so  received ;  and, 

lastly,  that  in  no  event  shall  the  said  properties  above 
described,  or  any  part  thereof,  be  held  for  any  claim, 
cost,  charge,  or  lien  for  working  the  same  by  the  said 
parties  of  the  second  part,  under  this  instrument ;  but, 
that  all  such  work  shall  be  done  at  the  expense  of  the 
said  parties  of  the  second  part  solely  and  alone;  and 
the  said  parties  of  the  first  part,  for  themselves,  their 
executors,  administrators  and  assigns  hereby  covenant 
and  agree  to  and  with  the  said  parties  of  the  second 
part,  their  heirs  and  assigns,  to  convey,  by  good  and 
sufficient  deed,  all  the  above  described  properties,  free 
and  clear  of  all  incumbrances,  to  them,  the  said  parties 
of  the  second  part,  or  their  assigns,  at  any  time,  upon 
the  payment  to  them,  the  said  parties  of  the  first  part, 

of  the  sum  of dollars,  either  out  of  the 

proceeds  of  the  said  mines,  or  otherwise,  on  or  before 

,  in  the  manner  hereinbefore  specified, 

by  the  said  parties  of  the  second  part,  or  their  assigns. 
And  it  is  hereby  expressly  and  mutually  covenanted 
and  agreed  that  this  covenant  shall  be  taken,  held  and 
deemed  a  covenant  real,  running  with  and  binding  the 
land. 

In  witness  whereof,  the  said  parties  have  hereunto, 

in  duplicate  set  their  hands  and  seals  this 

day  of .,  19... 


OIL  LAND  LEASE.  369 

OIL,   LAND   LEASE. 

Form  No.  40. 

This  Indenture,  made  this day  of , 

191..,  by  and  between ,   a  corporation, 

organized  and  existing  under  and  by  virtue  of  the 

laws  of  the  State  of ,  hereinafter  called 

the  lessor,  and  the ,  a  corporation,  here- 
inafter called  the  lessee,  Witnesseth :  That  for  and  in 
consideration  of  the  covenants  and  agreements  herein- 
after expressed  and  by  the  lessee  to  be  fully  kept  and 
performed,  the  lessor  has  demised  and  leased,  and  does 
hereby  demise  and  lease  unto  the  said  lessee,  all  that 
certain  piece  or  parcel  of  land  situate  in  the  county 

of   ,   State  of   ,  and  more 

particularly  described  as  follows,  to-wit:  (Here  in- 
sert description),  containing acres,  more  or 

less. 

The  lessor  has  furthermore  granted,  demised  and 
leased,  and  by  these  presents  does  grant,  demise  and 
lease  unto  the  said  lessee,  all  the  oil,  gas,  hydro-car- 
bons, water  and  minerals  of  every  kind  and  character 
whatsoever,  in  and  under  said  lands,  and  the  right  to 
sever  and  remove  the  same ;  also  the  right  to  construct 
and  maintain  telegraph,  telephone,  pipe  lines  and 
roadways  from  adjoining  lands  on  or  across  the  de- 
mised premises;  the  right  to  construct  and  maintain 
buildings,  derricks,  tanks  and  other  structures  used  or 
necessary  for  the  boring  for,  excavating,  preserving 
and  handling  oil,  gas,  hydro-carbons,  water  and  other 
minerals  produced  on  the  demised  premises. 

To  have  and  to  hold  the  same  unto  the  said  lesse'e 

for  the  full  term  of years  from  and  after 

the  date  hereof,  provided  that  all  covenants  and  con- 
Note. — For  form  of  oil  leases  used  in  Indiana,  Kansas,  New 
York,  Pennsylvania,  Tennessee  and  Texas,  see  Donahue  Pet. 
&  Gas.,  §§28-34;  Thornton's  Oil  and  Gas,  appendix. 


370  FORMS— LEASES. 

ditions  hereof  are  fully  kept  and  performed  by  the 
said  lessee. 

The  said  lessee  agrees  to  commence  the  erection  of  a 
standard  or  rotary  drilling  rig  on  said  lands  within 
days  from  the  date  hereof ,  and  carry  for- 
ward the  work  of  completing  the  same  with  all  reason- 
able despatch,  working  continuously  with  a  proper 

force  of  men  for  at  least hours  every  day, 

except  Sundays  and  holidays,  and  unless  prevented  by 
strikes,  the  elements,  or  other  causes  beyond  the  con- 
trol of  the  lessee. 

Within days  from  the  completion  of  said 

rig  the  said  lessee  agrees  to  commence  the  actual  work 
of  drilling  for  oil,  and  thereafter  shall  work  continu- 
ously twenty-four  hours  each  day,  unless  prevented  by 
strikes,  the  elements,  unavoidable  accidents  or  other 
causes  beyond  the  control  of  the  lessee,  until  a  depth 

of feet  is  reached,  or  until  oil  is  discovered 

in  paying  quantities  at  a  lesser  depth.  Oil  in  paying 
quantities  is  hereby  defined  a,s  the  production  of  not 

less  than barrels  during  twenty-four  hours 

continuous  pumping. 

In  drilling  said  wells  the  lessee  agrees  to  proceed  in 
a  workmanlike  manner  in  accordance  with  the  best 
practice  of  the  Field,  properly  casing  said  well,  and 
shutting  off  therefrom  any  water  encountered ;  to  com- 
ply with  all  statutes  of  the  United  States,  the  State  of 
California  and  all  local  ordinances. 

Upon  the  discovery  of  oil  in  paying  quantities,  as 
herein  defined,  the  lessee  shall  during  each  calendar 

year  thereafter  commence  and  complete wells  to 

a  depth  of .  .feet,  or  until  oil  is  discovered  in 

paying  quantities  at  a  lesser  depth,  until  a  total  of 

wells  has  been  drilled.  The  number  of 

wells  herein  specified  shall  not  prevent  the  lessee  from 
drilling  as  many  more  wells  as  it  may  desire. 


OIL  LAND  LEASE.  371 

Upon  the  completion  of  a  well  the  lessee  shall  use 
diligence  and  care  to  keep  the  same  in  good  condi- 
tion, and  free  from  sand,  and  if  the  well  does  not  flow 
freely,  shall  pump  it  so  that  the  well  shall  produce 
at  all  times  to  its  maximum  capacity.  No  well  pro- 
ducing less  than barrels  a  day,  however, 

need  be  pumped.  Whenever  the  market  value  of  oil 

shall  fall  below  cents  per  barrel  at  the 

well,  pumping  and  further  drilling  may  be  discon- 
tinued while  such  price  prevails,  provided,  there  shall 
be  no.  discontinuance  of  drilling  until  the  first  well  has 
been  completed. 

The  lessee  agrees  to  deliver  to  the  lessor of 

all  oil,  gas,  water  or  other  minerals  produced  from 
said  land  over  and  above  what  is  necessary  for  actual 
operation  of  the  property.  The  lessor  shall  have  the 
option  to  take  said  royalty  in  kind  or  in  money,  but 
said  election  when  exercised  shall  be  changed  not 

of tener  than  once  every months.  In  the  event 

of  the  lessor  taking  the  royalty  in  kind  the  same  shall 
be  delivered  as  produced  into  the  lessor's  tanks  erected 
on  the  demised  land  by  lessor  for  that  purpose.  In 
the  event  of  the  lessor  electing  to  take  such  royalty 
in  money,  the  lessee  shall  pay  to  the  lessor  on  the 

day  of  each  and  every  month  the  market  value 

of  all  royalty  produced  during  the  preceding  calen- 
dar month. 

The  lessee  agrees  to  protect  said  lands  against  all 
claims  of  labor  and  material  men,  and  to  see  that  the 
notices  which  may  be  posted  by  the  lessor  to  protect 
said  land  from  such  liens  are  kept  in  place;  to  pay 
all  taxes  and  assessments  levied  on  said  lands  and 
improvements ;  provided,  however,  that  should  any 
royalty  or  tax  on  production  be  demanded  by  the 
United  States,  the  lessor  shall  pay  the  royalty  or  tax 
on  the  royalty  oil,  and  the  lessee  shall  pay  the  tax  on 
its  oil. 


372  FORMS— LEASES. 

The  lessee  further  agrees  to  keep  careful  and  accu- 
rate logs  of  all  wells  drilled,  showing  the  width, 
depth  and  character  of  the  various  strata  encountered, 
and  to  give  copies  thereof  and  maps  of  the  various 
strata  to  the  lessor  if  required.  To  keep  careful  and 
accurate  books  of  account  showing  production,  and 
to  keep  all  samples  or  run  tags  on  file  which  shall  at 
all  reasonable  times  or  time  be  open  to  the  inspection 
of  the  lessor. 

It  is  understood  and  agreed  that  lessor  claims  said 
land  under  mining  locations,  and  does  not  warrant 
or  guarantee  the  title  against  the  claims  of  the  United 
States  or  rulings  of  the  land  department.  In  the 
event  that  any  title  to  said  land  shall  be  vested  in 
the  lessee  by  the  United  States,  the  lessee  shall  never- 
theless hold  the  same,  subject  to  all  the  terms  and 
conditions  hereof. 

The  lessor  hereby  extends  to  the  lessee  the  privilege 
of  purchasing  said  lands  at  any  time  within  one  year 
from  the  date  hereof  for dollars. 

Time  and  each  and  every  stipulation  of  this  agree- 
ment is  of  the  essence  hereof,  and  in  the  event  of  the 
failure  to  perform  any  of  the  terms  hereof,  this  lease 
shall  at  once  become  null  and  void  at  the  option  of  the 
lessor. 

Upon  the  expiration  of  the  term  hereof,  or  sooner 
termination  of  this  lease,  the  lessee  shall  quietly  and 
peaceably  surrender  possession  thereof  to  the  lessor. 
Lessee  shall  have days  to  remove  all  prop- 
erty placed  on  the  land  by  it,  excepting  derricks 
and  casings  in  the  wells,  but  the  lessor  shall  have  the^ 
right  to  purchase  the  whole  or  any  part  of  such  prop- 
erty during  such days  by  paying %  of 

the  first  cost  thereof  on  the  land. 

In  the  event  of  any  action  at  law  being  necessary 
to  recover  possession  of  said  land,  or  any  of  the 
royalties  hereunder,  the  lessee  shall  pay  to  lessor  all 


NOTICE  OF  FORFEITURE  OF  LEASE.  373 

costs  and  a  reasonable  attorney's  fee  to  be  fixed  by 
the  court  in  said  action,  which  costs  and  fee  shall  be 
a  lien  on  the  property  of  the  lessee. 

This  agreement  shall  run  to  and  be  binding  upon 
the  successors  and  assigns  of  the  parties  hereto. 

In  witness  whereof,  the  parties  hereto  have  caused 
their  respective  corporate  names  and  seals  to  be 
hereto  affixed  by  their  respective  presidents  and  sec- 
retaries thereunto  duly  authorized  by  resolution  of 
their  respective  boards  of  directors,  the  day  and  year 
first  above  written. 

ADDENDUM. 

Upon  the  expiration  of  the  term  of  said  lease,  the 
lessee,  if  he  .shall  have  fully  and  faithfully  kept  and 
performed  all  the  terms  and  conditions  hereof,  shall 
have  the  right  to  the  production  forever  of  all  wells 

so  long  as  they  shall  produce barrels  per  day, 

subject  to  all  terms  hereof  as  to  royalty  and  operation, 
and  he  may  clean  out  or  deepen  the  said  wells,  and  he 
shall  have  the  right  to  go  on  and  across  said  land,  but 
all  work  shall  be  confined  to  an  area  of  one  acre 
around  each  well,  provided  this  shall  not  apply  to 
any  well  started years  after  the  date  hereof. 

NOTICE   OF   FORFEITURE   OF   LEASE. 

Form  No.  41. 

(Precedent  in   Mathews   Slate'  Co.   v.   New  Empire   Slate   Co., 
122  Fed.  972.) 

To (lessee)   and assigns  and 

employees : 

Take  notice  that  under  and  by  virtue  of  the  provi- 
sions of  the  lease  from  the Company  to 

bearing  date  the day  of , 

19 . . ,  that  the  said  Company  has  exercised  and  does 
hereby  exercise  its  option  to  terminate  this  lease  and 
to  re-enter  upon  and  possess  itself  of  the  premises 


374  FORMS— LEASES. 

demised  for  the  reasons  that  the  said and 

his  successors  in  interest  have  failed  to  keep  and  per- 
form their  promises,  contracts,  and  agreements  in  said 
instrument  set  forth,  as  follows : 

(Insert  ground  of  forfeiture.) 

And  you  are  hereby  notified  that  all  rights  and  priv- 
ileges conveyed  and  contracted  under  said  instrument 
have  become  forfeit  and  are  hereby  terminated. 

Dated ,  19. .. 

LOCATION  NOTICES. 

ADDITIONAL,    AND    AMENDED    CERTIFICATE    OF    LOCA- 
TION. 

Form  No.  42. 

(Precedent  in  Porter  v.  North  Star  Co.,   133   Fed.   756.) 

Know  all  men  by  these  presents  that  the  undersigned 

,  a  citizen  of  the  United  States,  has  this 

day  of ,  19 .  . ,  amended,  located 

and  claimed,  and  by  these  presents  does  amend,  locate 
and  claim  by  the  rights  of  original  discovery,  and  the 
location  heretofore  made,  such  deeds,  transfers,  or 
conveyances  as  may  have  been  made,  and  this  amended 
certificate  made,  filed  and  recorded  as  provided  by 

Federal  law  and  by  the  laws  of  the  State  of 

now  in  force,  and  local  customs  and  rules, 

hundred  linear  feet,  on  this  lode,  vein,  ledge  or  de- 
posit, bearing  gold,  silver,  lead,  copper  and  other  val- 
uable minerals,  with  all  its  dips,  angles  and  variations 

as  allowed  by  law,   together  with hundred 

feet  on  each  side  of  the  middle  of  said  vein  at  the  sur- 
face and  all  veins,  lodes,  ledges  or  deposits  and  sur- 
face ground  within  the  lines  of  said  claim.  This  said 

lode  was  originally  located  by and 

on  the day  of ,  19 . . , 

and  named  the ,  by  which  name  it  is 


AMENDED  CERTIFICATE  OF  LOCATION.  375 

found  of  record  in  Book of  Mining  Locations, 

pages and ,  County Rec- 
ords. It  is  also  found  in  Book ,  page , 

Records  of Mining  District,  said  County 

and  State.     The  name  of  this  lode  in  future  will  be  the 

The  date  this  amended  location  is 

made  is  the day  of ,  19.    The  name 

of  the  amending  locator  is From  the 

discovery  point  at  the  discovery  monument  there  is 

claimed  by  him feet  in  a direction  and 

feet  in  a direction  along  the 

course  of  said  lode  or  vein.     The  general  course  of 

this  vein  is The  discovery  shaft  or  its 

equivalent  is  situated  upon  the  claim hundred 

feet from  the and  exposes  the  ledge 

at  a  depth  of  fully feet;  its  dimensions  are 

by feet  deep. 

This  further  and  additional  and  amended  certificate 
of  location  is  made  and  filed  without  waiver  or  any 
previously  acquired  and  existing  rights  in  and  to  said 
mining  claim,  but  for  the  purpose  of  correcting  any 
errors  or  omissions  in  the  original  location  or  location 
certificate,  description  or  record ;  and  for  the  purpose 
of  securing  the  benefit  of  the  act  of  the  legislature  of 

the  State  of ,  approved and 

the  amendments  thereto,  and  of  conforming  to  the 
requirements  of  law.  That  said  mining  claim  is  sit- 
uate in  the. . Mining  District,  County  of 

,  State  of . . ,  and  more  particu- 
larly described  as  follows,  to  wit: 

(Description.) 


Locator. 


376  FORMS— LOCATION   NOTICES. 

LODE  LOCATION. 

Form  No.  43. 

(Precedent  in  Hammer  v.  Garfield  Co.,  130  U.  S.  291;  adapted 
to  use  in  California,  C.  C.,  §  1426,  in  which  state  the 
record  must  be  a  true  copy  of  the  notice  posted.) 

NOTICE  OF  LOCATION. 

Notice  is  hereby  given  that  the  undersigned,  having 
complied  with  the  requirements  of  Chapter  VI  of 
Title  XXXII  of  the  Revised  Statutes  of  the  United 
States  and  the  laws  of  the  State  of  California,  and  the 

local  customs,  laws  and  regulations  has  located 

hundred  linear  feet  on  the lode  running  in  a .... 

and direction  as  near  as  can  be  determined  from 

present  developments  with feet  on  each  side  of 

the  center  of  the  claim  situated  in Mining 

District,  County  of and  State  of  Califor- 
nia and  described  as  follows:  Commencing  at  discov- 
ery stake,  thence  running feet to  cen- 
ter stake;  thence feet to  stake  "A," 

thence feet  to  stake  "B,"  thence feet  to 

stake  "C,"  and feet to  stake  "D"  and 

feet to  place  of  commencement.  This 

lode  is  located  about feet.  ....  .of 

Dated ,  19... 


Locator. 

MILL-SITE  LOCATION. 

Form  No.  44. 

(330  feet  by  600  feet  equals  5  acres.) 

NOTICE  OF  LOCATION. 

Notice  is  hereby  given  that  the  undersigned,  pro- 
prietor of  that  certain  vein  or  lode  claim  known  as 

Note. — All  notices  of  location,  or  of  forfeiture,  or  of  annual 
expenditure  must  substantially  conform  to  the  law  of  the 
state  or  the  local  .rules  of  the  mining  district  in  which  the 
claim  is  situated. 


PLACER  LOCATION.  377 

the .mining  claim  (or  the  owner  of  that 

certain  quartz  mill  or  reduction  works  known  as  the 

)  has  this  day  located  five  (5)  acres  of 

non-mineral  land  to  be  known  as  the Mill- 
site,  situate  in  the Mining  District,  County 

of and  State  of ,  and  described 

as  follows: 

Beginning  at  the  northeast  corner  of  said  mill-site, 
a  post  marked  N.  E.  cor.  No.  1,  which  corner  is  about 

feet  in  a direction  from  the  corner  of 

the mining  claim,  U.  S.  survey  No. .,  thence 

west feet  to  a  post  marked  N.  W.  cor.  No.  2 ; 

thence  south feet  to  a  post  marked  S.  W.  cor. 

No.  3,  thence  east feet  to  a  post  marked  S.  E. 

cor.  No.  4 ;   thence  north feet  to  the  place  of  be- 
ginning. 

Dated ,  19... 


Locator. 


PLACER  LOCATION   (on  surveyed  land). 

Form  No.  45. 

(Precedent  in  Kern  Oil  Co.  v.  Crawford,  143  Cal.  298.) 

NOTICE  OF  LOCATION. 

Notice  is  hereby  given  tnat  the  undersigned  has  this 

day  of ,  19. .,  located  a  placer  mining 

claim  situated  in Mining  District,  County  of 

,  State  of ,  described  as  follows : 

The of  Section in  Township ,  Range 

M.,  containing acres. 

This  claim  shall  be  known  as  the placer  min- 
ing claim. 


Locator. 


378  FORMS— LOCATION   NOTICES. 

PLACER  LOCATION    (on  unsurveyed  lands). 

Form  No.  46. 

(Precedent  in  McKinley  Creek  Co.  v.  Alaska  United  Co.,   183 
U.  S.  563.) 

NOTICE  OP  LOCATION. 
Notice  is  hereby  given  that  I,  the  undersigned,  have 

this day  of ,  19.  .,  located  a  placer 

mining  claim  1500  feet  running  with  the  creek  and 
300  feet  on  each  side  from  center  of  creek  known  as 

Creek  in Mining  District,  running 

into River.    This  claim  is  the  east  extension 

of claim  on  about feet  from  the  first 

falls  above  the River  in  the .of , 

and  shall  be  known  as  the placer  mining  claim. 

Witnesses :   .  


Locator. 


TUNNEL-SITE  LOCATION. 

Form  No.  47. 

(Precedent  in  Min.  Reg.,  par.  17.) 

NOTICE  OF  LOCATION. 

Notice  is  hereby  given  that  I,  the  undersigned,  have 
this day  of ,  19.  .,  located  a  tunnel- 
site  to  be  known  as  the Tunnel  Claim,  situate 

in  the Mining  District,  County  of , 

State  of ,  and  described  as  follows : 

Commencing  at  this  post  and  location  notice  distant 
feet  from  a  (blazed  tree inches  in  diam- 

Note. — In  California  the  location  notice  must  be  posted  at 
the  face  or  point  of  comencement  of  the  tunnel.  C.  C.,  §  1426e. 
The  boundary  lines  of  the  tunnel  must  be  established  by 
stakes  or  monuments  placed  along  the  lines  at  an  interval 
of  not  more  than  600  feet  from  the  face  or  point  of  com- 
mencement of  the  tunnel  to  the  terminus  of  3000  feet  there- 
from. Id.,  §  1426f. 


WATER  LOCATION.  379 

eter,  marked ,  or  other  natural  object  or  per- 
manent monument)  ;  thence  running  (3,000)  feet 
to  a  post  marked ;  the  intermediate  dis- 
tance on  the  line  of  said  tunnel  being  marked  by  posts 

placed  thereon feet   apart   and,   respectively, 

marked  as  follows : 

The  said  tunnel  shall  be feet  in  length  and 

, .  feet  in  width  in  the  clear. 


Locator. 

WATER  LOCATION. 

Form  No.  48. 

(California.) 

Notice  is  hereby  given  that  the  undersigned  hereby 

appropriates inches  of  water,  measured  under  a 

inch  pressure  flowing  in  the ,  County  of 

,  State  of ,  for  the  purpose  of  fur- 
nishing water  and  power  to and  at  other 

places  along  the  line  of  diversion. 

That  said  water  shall  be  diverted  from  said 

at  a  point  about on  the bank  thereof,  thence 

in.a direction  for  about to 

That  the  means  of  the  diversion  of  said  water  shall 

be  by  a  ditch feet  wide  at  the  top,  feet 

wide  at  the  bottom  and ...'...  feet  deep,  and  other  nec- 
essary or  convenient  appliances  therefrom. 

Dated ,  19... 


Locator. 


380  FORMS— PATENT    PROCEEDINGS. 

PATENT  PROCEEDINGS. 

ADVERSE   CLAIM. 

Form  No.  49. 

In  the  United  States  Land  Office  at ,  State 

of 

In  the  matter  of  the  application  of Mining 

Company  for  a patent  for  the 

mining  claim  situate  in Mining  District, 

County  of ,  State  of ,   Town- 
ship No . . . ,  Range  No .  . . , Meridian. 

To  the  Register  and  Receiver  of  the  United  States 
Land  Office  at ,  State  of : 

State  of ,     I 

County  of \   ss' 

,  being  first  duly  sworn,  according  to 

law,  deposes  and  says  that  he  is  a  citizen  of  the  United 

States,  born  in  the  State  of ,  and  residing  at 

,  in  the  County  of and  State  of 


Deponent  further  says  that  in  virtue  of  a  com- 
pliance on  his  part  and  that  of  his  grantors  with  the 
laws  of  the  United  States  relating  to  taking  up,  locat- 
ing and  holding  mining  claims  or  mineral  lands  in 
the  public  domain  and  with  the  laws  of  the  State  of 

,  and  with  the  local  laws,  customs  and  usages 

of  the. Mining  District,  deponent  has  become, 

and  now  is,  the  owner,  in  possession  of  and  entitled 

to  own  and  possess linear  feet  on  the vein, 

lode  or  ledge  of  quartz  and  other  rock  in  place,  bear- 
ing   and together  with  certain  surface 

ground  appurtenant  thereto  for  the  convenient  use 
thereof  in  working  said  vein,  lode  or  ledge ;  said  claim 
embracing  in  all acres  in  superficial  area,  sit- 


ADVERSE   CLAIM.  381 

uate,  lying  and  being  in  the Mining  District, 

County  of ,  State  of 

Deponent  further  says  that  the  facts  relative  to  his 
claim,  right  and  title  of  possession  to  said  vein,  lode 
or  ledge  and  mining  ground,  claim  and  premises  are 
substantially  as  follows:  That  on  and  before  the  day 
of  the  location  thereof,  hereinafter  mentioned,  the 

said vein,  lode  or  ledge  and  mining  premises 

were  mineral  land  of  the  public  domain  and  entirely 
vacant  and  unoccupied  and  were  not  owned,  held  or 
claimed  by  any  person  or  party  as  mining  ground, 
or  otherwise,  and  that  while  the  same  were  so  vacant, 

unoccupied  and  unclaimed,  to  wit :  on  the day 

of ,  19. .,    and. ,  each  of 

them  being  citizens  of  the  United  States,  entered 
upon  and  explored  the  premises,  discovered  and  lo- 
cated the  said vein,  lode  or  ledge  and  occu- 
pied the  same  as  a  mining  claim. 

That  the  said  premises  so  located  and  appropriated 

consist  of feet  in  a direction  on  and 

along  the  said  vein,  lode  or  ledge  from  the  location 
stake  and feet  in  width,  as  will  more  fully  ap- 
pear by  reference  to  the  notice  of  location,  a  duly  cer- 
tified copy  whereof  is  hereunto  annexed,  marked 
Exhibit  "A,"  and  made  a  part  hereof.  That  the  said 
locators  upon  the  making  of  said  location  entered  into 
and  took  possession  of  said  vein,  lode  or  ledge,  mining 
ground,  claim  and  premises,  erected  thereon  such 
stakes  and  monuments  as  were  necessary  to  point  and 
designate  the  boundaries  and  extent  thereof,  did  such 
work  thereon  and  performed  all  such  acts  as  were  re- 
quired by  the  mining  laws  of  Congress,  and  of  the 

State  of ,  and  by  the  laws,  customs,  rules  and 

regulations  of  the  miners  of  the  said Mining 

District,  in  which  said  claim  is  situated  and  filed  their 
said  notice  of  location  in  the  office  of  the  County  ' 
Recorder  of  said  County  of ,  by  whom  the 


382  FORMS— PATENT    PROCEEDINGS. 

same  was  recorded  on  the day  of ,  at 

page .'of  Book of of  the  Records  of 

said  county. 

That  said  locators  remained  in  the  possession,  occu- 
pation and  enjoyment  of  the  said  vein,  lode  or  ledge, 
mining  claim,  ground  and  premises  and  continued 
from  the  date  of  said  location  to  work  upon,  prospect 

and  develop  the  same  until  the day  of , 

19 .  . ,  on  which  date  the  said  locators,  owners  and  pos- 
sessors of  said  vein,  lode  or  ledge,  and  said  mining 
ground,  claim  and  premises,  by  their  deed  in  writing, 
good  and  sufficient  in  the  law,  conveyed  all  of  said 

vein,  lode  or  ledge,  mining  ground,  claim  and 

premises,  so  as  aforesaid  located  by  them,  to , 

who  thereupon  entered  into,  took  possession  and  con- 
trol, and  has  since  possessed,  controlled,  enjoyed  and 
occupied  all  of  said .vein,  lode  or  ledge,  min- 
ing ground,  claim  and  premises.  That  the  said  lo- 
cators and  said ,  their  said  grantee  and  the 

adverse  claimant  herein  did  comply  with  every  rule, 

regulation  and  custom  in  force  in  the  said 

Mining  District,  and  with  the  provisions  of  the  mining 
laws  of  the  State  of ,  and  of  the  Acts  of  Con- 
gress in  that  behalf  enacted. 

That  there  is  a vein,  lode  or  ledge  with 

wall  within  said  mining  ground,  claim  and 

premises  of  an  average  width  of ,  running  in  a 

and direction,  containing vein 

matter  carrying ;  and  there  is  blocked  out,  or 

in  sight, tons  of  ore  therein. 

That  there  has  been  a  large  amount  of  money  ex- 
pended on  said vein,  lode  or  ledge  and  said  min- 
ing ground,  claim  and  premises  by  said >  the 

adverse  claimant  herein,  and -his  grantor  and  prede- 
cessors in  interest  aforesaid,  to  wit :  dollars, 

in ,  and  there  has  been  extracted  from 

said  vein,  lode  or  ledge  and  said  mining  ground, 


ADVERSE   CLAIM.  383 

claim  and  premises,  more  than tons  of  ore 

of  the  value  of dollars.  That  by  reason 

of  the  facts  aforesaid  deponent  has  become  and  now 
is  the  rightful  owner  (except  as  against  the  para- 
mount title  of  the  United  States),  and  the  lawful  pos- 
sessor of  the  said  vein,  lode  or  ledge  and  the  said  min- 
ing ground,  claim  and  premises. 

That  the  abstract  of  title,  herewith  presented  and 
made  a  part  hereof,  shows  the  deed,  conveyance  and 
transfer,  whereby  deponent  became,  and  is  vested  with 
all  the  right,  title  and  interest  of  the  said  locators  in 
and  to  the  said  vein,  lode  or  ledge,  and  said  mining 
ground  and  premises,  so  located  as  aforesaid. 

Deponent  further  says  that  the  pretended  mining 

claim  of  said  applicant  for  patent  known  as  the 

mining  claim,  overlaps,  embraces  and  includes  a  part 
and  portion  of  deponent's  said  vein,  lode  or  ledge, 
mining  ground,  claim  and  premises. 

That  the  relative  position  of  said  several  mining 
claims  and  the  boundaries  and  extent  of  said  overlap, 
at  the  surface,  are  more  particularly  set  forth,  men- 
tioned and  specifically  described  by  courses  and  dis- 
tances in  the  plat  hereto  attached,  marked  Exhibit 
"B,"  and  made  a  part  hereof. 

"Wherefore,  deponent  does  dispute  and  contest  the 
right  of  said  applicant  for  a  patent  from  the  Govern- 
ment of  the  United  States  for  said  pretended 

mining  claim,  and  respectfully  asks  that  all  further 
proceedings  in  the  matter  of  said  application  be  stayed 
in  said  land  office  until  the  controversy  shall  have  been 
settled  by  a  court  of  competent  jurisdiction. 

Subscribed  and  sworn  to  before  me  this. day 

of..  ,  19.. 


884         FORMS— PATENT  PROCEEDINGS. 

STATEMENT  OP  CHARGES  AND  PEES. 

Form  No.  50*. 
(Caption  as  in  Form  No.  49.) 

State  of ,     ) 

County  of \    ss- 

,  being  first  duly  sworn,  according 

to  law,  deposes  and  says,  that  he  is  the  attorney  in 

fact  for  the Mining  Company,  the  applicant 

for  patent  for  the mining  claim,  designated 

as  Mineral  Entry  No. ..  That  said  claimant  has  paid 
the  following  charges  and  fees  for  publication,  and 
surveys  and  fees  and  money  to  the  Register  and  Re- 
ceiver of  the  land  office,  viz. : 

To  the  Surveyor-General .$ 

To  the  Deputy    U.  S.  Mineral    Surveyor    for 

making  the  survey $ 

To for  publication  of  notice $ 

To  Register  and  Receiver  for  filing  application .  $ 

To  the  Receiver  of  the  local  land  office,  for  the 

land  embraced  in  the  claim $ 

Subscribed  and  sworn  to  before  me  this day 

of ,  19... 

AFFIDAVIT  THAT  NO   KNOWN   VEIN  EXISTS. 

Form  No.  51. 
(Caption  as  in  Form  No.  49.) 

State  of ,     I 

County  of ]  ss< 

and ,  of  the  said  County 

and  State,  being  first  duly  sworn,  each  for  himself  and 
not  one  for  the  other,  deposes  and  says : 

That  he  is  well  acquainted  with  the min- 
ing claim,  embracing acres,  situated  in  the 


FINAL  AFFIDAVIT  OF  POSTING.  385 

Mining  District,  County  of and 

State  of ,  owned  and  worked  by , 

the  applicant  for  a  United  States  patent  therefor. 

That  for  many  years  he  has  resided  near,  and  often 
been  upon  said  mining  premises,  and  that  no  known 
vein  or  veins  of  quartz  or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  lead,  tin,  or  copper  exist  on 
said  placer  mine  and  claim,  or  on  any  part  thereof, 
so  far  as  he  knows,  and  he  verily  believes  that  none 
exist  thereon. 

Subscribed  and  sworn  to  before  me  this day 

of..  ,19.. 


FINAL  AFFIDAVIT  OF  POSTING. 

Form  No.  52. 
(Caption  as  in  Form  No.  49.) 

State  of ,      ) 

County  of \    ss- 

,  being  first  duly  sworn  according  to 

law,  deposes  and  says,  that  he  is  the  duly  authorized 

attorney  in  fact  and  superintendent  of  the 

Mining  Company,  the  claimant  of  the mining 

claim  in Mining  District,  County  of 

and  State  of ,  the  official  plat  of  which  prem- 
ises designated  by  the  Surveyor-General  as  United 
States  Survey  No. . . ,  together  with  the  notice  of  its 
intention  to  apply  for  a  patent  therefor,  was  posted 

thereon  on  the day  of ,  19 . . ,  as  fully 

set  forth  and  described  in  the  affidavit  of 

and ,  dated  the day  of , . . ,  19 . . , 

which  affidavit  was  filed  in  the  land  office  at 

in  the  State  of .  in  this  case,  and  that  the  plat 

and  notice  so  mentioned  and  described  remained  con- 
spicuously and  continuously  posted  upon  said  mining 
claim  from  and  including  the  said day  of , 


386  FORMS— PATENT    PROCEEDINGS. 

19 .  . ,  until  and  including  the day  of ,  19 ... 

including  the  sixty  days'  period  during  which  notice 
of  said  application  for  patent  was  published  in  the 
newspaper. 

Subscribed  and  sworn  to  before  me  this day  of 

,19... 

AFFIDAVIT  OF   EXPENDITURES   ON   PL.ACER   CLAIM. 

Form  No.  53. 
(Caption  as  in  Form  No.  49.) 

State  of ,     I 

County  of J   ss- 

We,  and ,  being  severally  duly 

sworn,  on  oath  depose  and  say,  that  we  are  citizens  of 

the  United  States  and  of  the  State  of ,  that 

we  are  well  acquainted  with  the  situation  and  charac- 
ter of  the mining  claim  claimed  by 

Mining  Company,  located  in.. Mining  Dis- 
trict, County  of ,  State  of ,  in 

Section ,  Township  No ...  of  Kange  No . . . , 

.Meridian. 

That  the  same  is  a  placer  mining  claim  containing 

.. That  we  have  no  financial  interest  in  said 

mining  claim.  That  we  are  conversant  with  the  work- 
ing of  said  mining  claim,  and  that  to  the  best  of  our 
knowledge  and  belief  the  amount  expended  on  said 
mining  claim  in  labor  and  improvements  by  the  said 
claimant  and  its  grantors  is  not  less  than  $500. 

That  said  labor  and  improvements  consist  of 

Subscribed  and  sworn  to  before  me  this day  of 

,  19.. 


PRELIMINARY  AFFIDAVIT  OF  POSTING.  387 

PRELIMINARY    AFFIDAVIT    OF    POSTING. 

Form  No.  54. 

• 

(Caption  as  in  Form  No.  49.) 

State  of ,    ) 

County  of j   ss' 

and ,  each  for  himself  and  not 

one  for  the  other,  being  first  duly  sworn  according  to 
law,  deposes  and  says,  that  he  is  a  citizen  of  the  United 
States  over  the  age  of  twenty-one  years  and  was  pres- 
ent on  the day  of '. . ,  19 . . ,  when  a  plat 

representing  the .  mining  claim  and  premises 

and  certified  to  as  correct  by  the  United  States  Sur- 
veyor-General of  the  District  and  State  of 

and  designated  by  him  as  Survey  No. . . ,  together  with 

a  notice  of  intention  of Mining  Company  to 

apply  for  a  patent  from  the  government  of  the  United 
States  for  the  mining  claim  and  premises  so  platted, 
was  posted  in  a  conspicuous  place  upon  said  mining 
claim,  to  wit: 

(Describe  place  of  posting.) 

where  the  same  could  be  easily  seen  and  examined. 
The  notice  so  conspicuously  posted  upon  said  mining 
claim  being  in  words  and  figures  as  follows,  to  wit : 

(Insert  "Legal  Notice,"  Form  No.  63.) 

Subscribed  and  sworn  to  before  me  this day  of 

.,  and  I  hereby  certify  that  I  consider 

the  above  deponents  credible  and  reliable  witnesses 
and  that  the  foregoing  affidavit  and  notice  were  read 
by  each  of  them  before  their  signatures  were  affixed 
thereto  and  the  oath  made  by  them. 


388  FORMS— PATENT    PROCEEDINGS. 

AFFIDAVIT   OF   PUBLICATION. 

Form  No.  55. 
(Caption  as  in  Form  No.  49.) 

State  of ,      I 

County  of \   ss- 

,  being  first  duly  sworn,  according  to 

law,  deposes  and  says  that  he  is  the  proprietor  of  the 

,  a newspaper,  published  at 

in  the  County  of ,  State  of That 

the  annexed  notice  of  the  intention  of Mining 

Company  to  apply  for  a  patent  from  the  Government 

of  the  United  States  for  the mining  claim 

designated  as  Survey  No. .  .was  published  in  said  news- 
paper   ,  commencing  on  the day 

of ,  19 .  . ,  and  ending  on  the day 

of ,  19 .  . ,  as  follows,  to  wit : 

Subscribed  and  sworn  to  before  me  this day  of 

,19... 

Note.     Attach  copy  of  printed  notice  hereto. 


AGREEMENT   OF   PUBLISHER. 

Form  No.  56. 

(Caption  as  in  Form  No.  49.) 

I, ,  owner  and  publisher  of  the ,  a 

newspaper  of  general  circulation  published  at 

in  the  County  of and  State  of , 

hereby  agree  to  publish  in  said  newspaper  the  notice 

of  the  intention  of .  Mining  Company  to  apply 

for  a  patent  from  the  Government  of  the  United  States 

for  the mining  claim  designated  as  Survey 

No..  .  and  situated  in  the Mining  District, 

County  of ,  State  of ,  as  required 

by  the  mining  laws  of  the  United  States,  and  to  hold 
said  applicant  alone  responsible  for  my  charges  for 


APPLICATION  FOR  PATENT.  389 

making  such  publication;  and  no  claim  nor  charge 
whatever  shall  be  made  by  me  against  the  Government 
of  the  United  States,  or  any  of  its  officers  or  agents 
therefor. 

In  witness  whereof,  I  have  hereunto  set  my  hand 
this day  of. ,  19.  .. 

APPLICATION    FOR    PATENT.      , 

Form  No.  57. 

In  the  United  States  Land  Office  at ,  in  the 

State  of 

Application  of Mining  Company  for  a  pat- 
ent for  its  claim  of linear  feet  of  the 

Lode,  bearing. ....  .and ,  together  with  sur- 
face ground  adjacent  and  appurtenant  thereto,  em- 
bracing an  area  of acres,  lying  and  being  in 

the Mining  District,  County  of , 

State  of ,  and  officially  designated  by  the 

Surveyor-General  as  Survey  No. . . . ,  in  Township 

No. . . . ,  Range  No. . . . ,    ......  Meridian,  as    shown 

by  the  official  plat  thereof  filed  herewith  and  the 
official  field  notes  of  survey  hereto  attached. 

To  the  Register  and  Receiver  of  the  United  States 
Land  Office  for  the  District  of  Lands  subject  to  sale 
at ,  in  the  State  of 

State  of ,    "I 

County  of j  SS' 

,  being  first  duly  sworn  according  to 

law,  on  his  oath,  deposes  and  says  that  he  is  a  citizen 
of  the  United  States,  over  the  age  of  twenty-one  years, ' 

residing  at in  the  County  of .  . ,  State 

of ,  and  that  he  is  the  agent  and  superin- 
tendent of Mining  Company,  and  is  duly 

authorized  and  empowered  to  verify  and  file  this  appli- 


390  FORMS— PATENT    PROCEEDINGS. 

cation,  as  will  appear  by  a  resolution  of  the  board  <;!' 
directors  of  said  company,  a  copy  whereof  is  hereto 
attached,  marked  Exhibit  "A,"  and  made  a  part 
hereof. 

That  the  said Mining  Company  is  a  cor- 
poration duly  organized  and  existing  under  and  by 

virtue  of  the  laws  of  the  State  of ,  having 

its  principal  place  of  business  at in  the  State 

of ,  as  will  appear  by  a  certified  copy  of  its 

articles  of  incorporation,  hereto  attached,  marked  Ex- 
hibit "B,"  and  made  a  part  hereof. 
"  Deponent  further  says  that  the  said Min- 
ing Company,  in  virtue  of  a  compliance  on  the  part 
of  itself  and  its  grantors  with  the  laws  of  the  United 
States  relating  to  taking  up,  locating  and  holding  min- 
ing claims  or  mineral  lands  in  the  public  domain  and 

with  the  mining  laws  of  the  State  of ,  and 

with  the  local  laws,  customs  and  usages  of  the 

Mining  District,  has  become  and  now  is  the  owner  of 
and  in  the  actual  possession  of  and  entitled  to  so  own 

and  possess linear  feet  on  the lode,  being 

a  mineral  vein  or  lode  or  ledge  of  quartz  and  other 

rock  in  place,  bearing and ,  together  with 

certain  surface  ground  appurtenant  thereto,  for  the 
convenient  use  thereof  in  working  said  lode,  vein  or 
ledge;  said  claim  embracing  in  all acres  in  super- 
ficial area;  situate,  lying  and  being  in  the Min- 
ing District,  ^County  of ,  State  of ,  the 

boundaries  and  extent  of  which  said  vein,  lode  or  ledge 
and  claim,  at  the  surface,  are  more  particularly  set 
forth,  mentioned  and  specifically  described,  by  course 
and  distance,  in  the  official  field  notes  of  survey  there- 
of, hereto  attached,  marked  Exhibit  "C"  and  made  a 
part  hereof ;  and  also  in  the  official  plat  of  said  mining 
claim  designated  as  Mineral  Survey  No ,  Town- 
ship No. .  . ,  Range  No. . . ,  Meridian,  and 

which  said  plat  is  noAV  posted  conspicuously  upon  said 


APPLICATION  FOR  PATENT.  391 

mining  claim  and  premises ;  to  which  said  plat  and 
field  notes  of  said  Mineral  Survey  No. .  . ,  reference  is 
hereby  particularly  made  as  fully  describing  and  set- 
ting forth  by  actual  survey  the  boundary  lines  at  the 
surface  of  the  vein,  lode,  ledge  and  mining  ground  so 
owned  by,  in  the  possession  of,  and  for  which  the  said 

Mining  Company  hereby  makes  application 

for  a  patent ;  this  deponent  making  the  said  plat  and 
field  notes  of  survey  of  said  Mineral  Survey  No. . . . ,  a 
part  of  this  statement  as  describing  the  mining  prem- 
ises hereby  sought  to  be  patented  and  wherein  the 
same  are  described  as  follows,  to  wit: 

(Description.) 

(There  is  expressly  excluded  from  this  application 
for  patent  the  following  portion  of  said  Survey  No. .  . , 
to  wit : ,  as  shown  on  said  official  plat. ) 

Deponent  further  says  that  the  facts  relative  to  the 

Mining  Company's  claim,  title  and  right  of 

possession  to  said  vein,  lode,  ledge  and  mining  prem- 
ises are  substantially  as  follows : 

That  on  and  before  the  day  of  the  location  thereof, 
hereinafter  mentioned,  the  premises  hereinbefore  de- 
scribed were  mineral  lands  of  the  public  domain  and 
entirely  vacant  and  unoccupied,  and  were  not  owned, 
held,  or  claimed,  by  any  person,  or  party  as  min- 
ing ground,  or  otherwise;  and  that  while  the  same 
were  so  vacant  and  unoccupied  and  unclaimed,  to  wit : 

on  the day  of ,19 .  . ,  and 

,  each  and  all  of  them  being  citizens  of  the 

United  States,  entered  upon  and  explored  the  prem- 
ises, discovered  and  located  the  said vein,  lode 

or  ledge  and  occupied  the  same  as  a  mining  claim. 

That  the  said  premises  so  located  and  appropriated 

consist  of feet  in  a direction  on  and  along 

the  said  vein,  lode  or  leclg<e  from  the  location  stake  and 
feet  in  width,  together  with  all  the  dips,  spurs, 


392  FORMS— PATENT    PROCEEDINGS. 

angles,  depths,  widths,  offshoots,  sinuosities  and  varia- 
tions, as  will  more  fully  appear  by  reference  to  the 
notice  of  location,  a  duly  certified  copy  whereof  is 
hereunto  attached,  marked  Exhibit  "D"  and  made  a 
part  hereof. 

That  the  said  locators,  said and  his  said 

associates,  upon  the  making  of  said  location  entered 

into  and  took  possession  of  said vein,  lode  or 

ledge  and  said  mining  ground,  claim  and  premises, 
erected  thereon  such  stakes  and  monuments  as  were 
necessary  to  point  and  designate  the  boundaries  and 
extent  thereof,  did  such  work  thereon  and  performed 
all  such  acts  as  were  required  by  the  mining  laws  of 

Congress,  of  the  State  of ,  and  by  the  laws, 

customs,  rules  and  regulations  of  the  miners  of  the 
district  in  which  said  claim  is  situated,  and  filed  their 
said  -notice  of  location  in  the  office  of  the  County 

Recorder  of  the  said  County  of .  . ,  by  whom 

the  same  was  recorded  on  the day  of , 

19 . . ,  in  Book at  page of of  the 

Records  of  said  county. 

That  said  locators  remained  in  the  possession,  occu- 
pation   and    enjoyment   of   the   said vein, 

lode  or  ledge  and  said  mining  claim,  ground  and 
premises  and  continued,  from  the  date  of  said  loca- 
tion, to  work  upon,  prospect  and  develop  the  same 

until  the day  of ,   19 .  . ,  on  which 

date  the  owners  and  possessors  of  said vein, 

lode  or  ledge,  mining  ground,  claim  and  premises  by 
their  deed  in  writing,  good  and  sufficient  in  the  law, 
conveyed  all  of  said  vein,  lode  or  ledge  and  mining 
ground,  claim  and  premises  so  as  aforesaid  located 

by  said ,  and  his  said  associates,  to .-..., 

and  thereupon  said entered  into,  took  pos- 
session and  control,  and  commenced  to  work  upon  and' 
develop  the  same,  and  so  continued  in  such  possession 
and  work  until  the day  of ,  19 . . ,  on 


APPLICATION  FOR  PATENT.  393 

which  date  the  said by  his  deed  in  writing, 

good  and  sufficient  in  the  law,  conveyed  all  of  said 

vein,  lode  or  ledge  and  said  mining  ground, 

claim  and  premises,  to Mining  Company,  the 

applicant  for  patent  herein,  and  thereupon  the  said 
corporation  entered  into,  took  possession  and  control, 
and  has  since  possessed,  controlled,  enjoyed,  and  occu- 
pied and  is  now  in  the  actual  and  peaceable  possession 

of  all  of  said vein,  lode  or  ledge  and  said 

mining  claim,  ground  and  premises. 

That  the  said  locators,  said. ........  .and  his  said 

associates  and  their  said  grantee  and  said  corporation, 
did  comply  with  every  custom,  rule,  regulation  and 

requirement  in  force  in  the Mining  District, 

and  with  the  provisions  of  the  mining  laws  of  the  State 
of ,  and  of  the  acts  of  Congress  in  that  be- 
half enacted. 

That  there  is  a  true  fissure  vein,  lode  or  ledge  with 
well  defined  walls  carrying  gouge,  within  said  claim, 

having  an  average  width  of feet,  running  in 

a and direction  and  containing  quartzose 

vein  matter  carrying  iron  and  copper  pyrites,  and 

there  is  blocked  out  or  in  sight tons  of  ore 

therein  of  an  average  value  of dollars  per  ton. 

That  there  has  been  a  large  amount  of  money  ex- 
pended on  said vein,  lode  or  ledge,  mining 

ground,  claim  and  premises  by  said  corporation,  the 
applicant  for  patent  herein,  and  by  its  grantors,  to 

wit :  dollars  in  running  a  tunnel feet 

long  with  drifts,  cross  cuts,  and  stopes  therefrom ;  and 
there  has  been  extracted  from  said  vein,  lode  or  ledge 

more  than,  to  wit tons  of  ore  of  the  value  of 

about dollars  per  ton. 

That  by  reason  of  the  facts  aforesaid  the  said 

Mining  Company,  the  applicant  for  patent  herein,  has 
become  and  is  the  rightful  owner  (except  as  against 
the  paramount  title  of  the  United  States),  and  the 


394  FORMS—PATENT    PROCEEDINGS. 

lawful  possessor  of  the  aforesaid vein,  lode, 

or  ledge  and  the  said  mining  ground,  claim  and  prem- 
ises. 

That  the  abstract  of  title,  herewith  presented,  duly 

certified  by  the ,  shows  the  various  deeds, 

conveyances  and  transfers  whereby  the  said 

Mining  Company,  the  applicant  for  patent  herein,  be- 
came and  is  vested  with  all  the  rights,  title  and  inter- 
est of  the  said  locators,  said and  his  said  asso- 
ciates and  their  said  grantee  in  and  to  said 

vein,  lode  or  ledge  and  said  mining  ground,  claim  and 
premises,  so  located  as  aforesaid. 

In  consideration  of  which  facts,  and  in  conformity 
with  the  provisions  of  Chapter  VI  of  Title  XXXII,  of 
the  Eevised  Statutes  of  the  United  States,  application 

is  hereby  made  for  and  in  behalf  of  said 

Mining  Company,  for  a  patent  from  the  Government 

of  the  United  States  for  the  said vein,  lode 

or  ledge,  deposit,  mining  ground,  claim  and  premises 
so  officially  surveyed  and  platted. 

Subscribed  and  sworn  to  before  me  this day  of 

,  19 .  . ,  and  I  hereby  certify  that  I  consider 

the  above  deponent  a  credible  and  reliable  person,  and 
that  the  foregoing  affidavit,  to  which  was  attached  the 

field  notes  of  survey  of  the mining  claim, 

was  read  and  examined  by  him  before  his  signature 
was  affixed  thereto. 

APPLICATION  TO  PURCHASE!. 

Form  No.  58. 
(Caption  as  in  Form  No.  49.) 

To    the  Register    and  Receiver,  United  States  Land 

Office  at : 

The  undersigned,  claimant  under  the  provisions  of 
the  Revised  Statutes,  Chapter  Six,  Title  Thirty-two, 


APPOINTMENT   OF  ATTORNEY  IN  FACT.  399 

Messrs and 

Absent :    Messrs .  . 


After  due  and  legal  proceeding's  the  following  pre- 
amble and  resolution  were  adopted  by  the  unanimous 
vote  of  the  directors  present : 

Whereas,  it  is  the  intention  of  this  corporation  to 
apply  for  a  patent  from  the  Government  of  the  United 
States  for  its  certain  mining  claim,  ledge,  lode  and 
premises  situate,  lying  and  being  in  the Min- 
ing District,  County  of .,  State  of 

and  called  the Mining  Claim. 

Now,  therefore,  be,  and  it  is  hereby 

Resolved,  That the  superintendent 

and  managing  agent  of  this  corporation  be  and  he  is 
hereby  fully  authorized  and  empowered  for  and  on 
behalf  of  this  corporation,  and  in  its  name  to  do  all 
acts  whatsoever  necessary  or  proper  for  the  purpose 
of  making  and  completing  said  application  for  and 
procuring  the  patent  for  said  mining  claim  and  to 
make  and  file  any  and  all  affidavits  or  other  papers 
of  any  kind  necessary  or  required  for  the  procuring 
of  said  patent  for  said  mining  claim  and  premises. 

I  hereby  certify  the  foregoing  to  be  a  full,  true  and 
correct  transcript  from  the  minute  book  of  the  Board 

of  Directors  of Mining  Company  and  a  full, 

true  and  correct  copy  of  the  preamble  and  resolution 
adopted  at  a  regularly  called  meeting  of  said  Direc- 
tors held  at  the  office  of  said  corporation  in  the  city 
of ,  County  of ,  State  of 

Witness  my  hand  and  the  corporate  seal  of 

Mining  Company,  by  me  hereto  affixed  this day 

of..  ,  19.. 


Secretary Mining  Company. 


400  FORMS— PATENT    PROCEEDINGS. 

CERTIFICATE   THAT   NO    SUIT   IS    PENDING. 

Form  No.  62. 

(Caption  as  in  Form  No.  49.) 
State  of. . 


County  of.  c   ss' 

I,   ,  do  hereby  certify  that  I  am  the 

duly  elected,  qualified  and  acting  clerk  of  the  County 

of ,   State  of ,  and  ex-officio  clerk 

of  the Court  of  the  State  of ,  in 

and  for  the  County  of 

And  I  do  hereby  further  certify  that  there  is  now 
no  suit  or  action  of  any  character  pending  in  said 

court  involving  the  right  of  possession  to  the 

mining  claim,  or  any  part  thereof,  and  there  has  been 
no  litigation  before  said  court  affecting  the  title  to 

said  mining  claim,  or  any  part  thereof,  for 

years  last  past,  or  within  the  period  prescribed  by 
the  statute  of  limitations  affecting  real  property,  to 
wit:.  ....  .years,    other   than   what   has   been   finally 

decided  in  favor  of  said Mining  Company. 

In  witness  whereof,  I  have  hereunto  set  my  hand 

and  affixed  the  seal  of  said Court  this 

day  of ,  19... 


County  Clerk  and  ex-officio  Clerk  of  the 

Court  of  the  State  of in  and  for  the 

County  of 


NOTICE   FOR  POSTING.  401 

NOTICE    FOR    POSTING    OF    APPLICATION    FOR   PATENT. 

Form  No.  63. 

LEGAL  NOTICE  OF  THE  APPLICATION  OF MIN- 
ING COMPANY  FOR  A  UNITED  STATES  PATENT. 

State  of ,      ) 

County  of. }      ss- 

Mining  Company  hereby  gives  notice 

that  under  and  in  pursuance  of  Chapter  VI  of  Title 
XXXII  of  the  Revised  Statutes  of  the  United  States, 

Mining  Company,  a  corporation  organized 

and  existing  under  the  laws  of  the  State  of , 

having  its  principal  place  of  business  and  post-office 

address  at in  the  State  of and 

engaged  in  the  business  of  mining  at Mining 

District,  in  the  County  of ,  State  of , 

and  which  is  authorized  to  locate  a  mining  claim  under 
the  provisions  of  said  Chapter  VI,  and  which  has  com- 
plied with  its  terms,  does  claim linear 

feet  of  the vein,  lode,  ledge  or  mineral  deposit 

bearing and with  surface  ground 

feet  in  width,  lying    and    being  situate    within  the 

Mining  District,  County  of ,  State 

of ,  and  has  made  application  to  the  United 

States  for  a  patent  for  said  mining  claim,  vein,  lode, 
ledge  and  mineral  deposit  and  intends  to  and  will  file 

in  the  United  States.  Land  Office  at ,  in  the 

State  of .,  that  being  the  proper  land  office, 

its  said  application  for  patent,  under  oath,  showing 
such  compliance,  together  with  the  plat  and  field  notes- 
of  the  survey  of  the  claim,  made  by  or  under  the 
direction  of  the  United  States  Surveyor-General  for 
the  State  and  District  of ,  showing  accu- 
rately the  boundaries  of  the  said  claim,  which  are  dis- 

Note.  Areas  intended  to  be  excluded  from  the  application 
for  patent  must  be  expressly  stated  in  both  the  posted  and 
published  notice  as  well  as  in  the  application  for  patent. 
Min.  Reg.,  pars.  38-39. 


402  FORMS— PATENT    PROCEEDINGS. 

tinctly  marked  by  monuments  on  the  ground  wherein 
and  whereby  the  boundaries  and  extent  of  said  claim, 
on  the  surface,  are  described  as  follows,  to  wit : 

(Description.) 

The  names  of  the  adjoining  and  conflicting  claims, 

as  shown  by  said  plat  and  survey,  are  the , 

officially  designated  as  Survey  No. ...  on  the  north, 

and  by  the mining  claim  (unsurveyed)  on 

the  east  and  said  claim  of  said Mining  Com- 
pany is  designated  as  Survey  No. .  .  in  the  said  official 
plat  posted  herewith. 

Any  and  all  persons  claiming  adversely  the  mining 
ground,  vein,  ledge,  premises,  or  any  part  of  the  same 
so  designated,  surveyed,  platted  and  applied  for,  are 
hereby  notified  that  unless  their  adverse  claims  are 
duly  filed  according  to  law  and  the  regulations  there- 
under, within  the  sixty  days'  period  of  the  publica- 
tion of  the  notice  of  said  application  with  the  Register 

of  the  United  States  Land  Office  at in  the 

State  of ,  they  will  be  barred  in  virtue  of 

the  provisions  of  said  statute. 

Dated  and  posted  on  the  ground  this day  of 

,19... 

by , 

Its  Superintendent  and  Attorney  in  Fact. 

Witnesses : 


NOTICE   FOR  PUBLICATION.  403 

NOTICE   FOR  PUBLICATION. 

Form  No.  64. 

NOTICE  OF  APPLICATION  FOR  PATENT. 
Mineral  Application  No. .  . 

In  the  United  States  Land  Office  at , 

,  19... 

Notice  is  hereby  given  that Mining  Com- 
pany, a  corporation  organized  and  existing  under  the 

laws  of  the  State  of ,  having  its  principal 

place  of  business  and  post-office  address  at. 

by  and  through ,  the  duly  authorized 

and  empowered  attorney  in  fact  and  superintendent 

of  said Mining  Company  and  by  the 

resolution  of  the  directors  thereof  herein  specifically 

authorized  and  whose  post-office  address  is  at , 

in  the  County  of and  State  of , 

has  made  and  filed  in  the  United  States  Land  Office 
at and  State  of its  duly  veri- 
fied application  for  patent  from  the  Government  of 

the  United   States    for linear   feet   of  the 

Mining   Claim,   situate   in Mining 

District,  County  of .,  State  of ,  and 

being  officially  surveyed,  platted  and  designated  as 
United  States  Survey  No....  in  Township  No...., 
Range  No. . ., .Meridian,  and  bounded  and  de- 
scribed according  to  the  field  notes  and  plat  of  said 
official  survey  as  follows: 

(Description.) 

-Particular  reference  is  hereby  made  to  the  plat  and 
field  notes  of  the  survey  of  the  said  United  States  Sur- 
vey No. .  .  in  Township  No. .  . ,  Range  No. .  . , 

Meridian  and  surface  ground  now  on  file  in  this  office 
and  to  the  plat  and  notice  posted  upon  said  lode  claim, 
said  Survey  No. .  V,  for  any  further  description  of  the 


404         FORMS— PATENT  PROCEEDINGS. 

vein,  lode,  ledge,  deposit,  mining  claim  and  premises 
hereby  sought  to  be  patented. 

The  names  of  the  adjoining  and  conflicting  claims 
as  shown  by  said  plat  and  survey  are 


And  notice  is  further  given,  that  any  and  all  per- 
sons having  or  claiming  adversely  or  in  opposition  to 

the  said Mining  Company  to  the  said  vein, 

lode,  ledge,  deposit,  mining  ground  and  premises  here- 
inbefore described,  or  any  part  thereof,  are  required 
to  present  and  file  their  adverse  and  opposing  claims 
during  the  sixty  days'  newspaper  publication  of  this 
notiee  to  and  with  the  Register  of  the  United  States 

Land  Office  at ,  or  they  will  be  barred  by 

virtue  of  the  statute. 


Register. 

It  is  hereby  ordered  that  the  foregoing  notice  of 
application  for  patent  be  published  for  a  period  of 

nine  consecutive  weeks  (or  sixty  days)  in  the , 

a newspaper  published  at 


Register. 

PROTEST. 

Form  No.  65. 

(Precedent  in  Grand  Canyon  Co.  v.  Cameron,  36  L.  D.  66.) 

In  the  United  States  Land  Office  at in  the 

State  of.... 

In  the  matter  of  the  application  of for  a 

United    States   patent   for mining   claim 

known  as  the and  Lodes  and  mill-sites  in 

Section ,  Township ,  Range of 


Protest  of Company. 


PROTEST.  405 

To  the  Register  and  Receiver  of  the  United  States 
Land  Office  for  the  district  of  land  subject  to  sale 
at in  the  State  of 

State  of .,    )   ss 

County  of ) 

,  •  being  duly  sworn,  according  to  law, 

on  his  oath  deposes  and  says :  that  he  is  the 

of  the Company,  the  protestant  herein,  and 

is  duly  authorized  and  empowered  to  verify  and  file 
this  protest  as  will  appear  by  a  resolution  of  the 
board  of  directors  of  said  company,  a  copy  whereof 
is  hereto  attached,  marked  Exhibit  "A"  and  made  a 
part  hereof. 

That  the  said Company,  the  protestant 

herein,  is,  and  since  the day  of ..........  19. ., 

has  been  a  corporation  maintaining  and  operating  a 
railroad  for  the  carriage  of  freight  and  passengers 

from  the  town  of in  the  State  of to 

a  point  on  the  rim  of  the in  said  State  near 

what  is  known  as  the Trail,  as  will  appear 

by  a  certified  copy  of  its  articles  of  incorporation 
hereto  attached,  marked  Exhibit  "B,"  and  made  a 
part  hereof. 

That  on  the day  of ,  19 .  . ,  the  said 

filed  his  application  to  the  Government  of 

the  United  States  for  a  patent  for  the  mining  claim 

known  as  the and  Lodes  and  Mill-sites  in 

Section ,  Township ,  Range of 

;  and  which  said  application  has  ever  since 

be'en  and  still  is  pending  and  undetermined. 

That  at  the  time  of  the  location  of  said  alleged 
lodes  said  applicant  for  patent  had  made  no  discovery 
of  any  valuable  deposit  of  mineral  within  the  limits 
of  either,  or  any  of  said  locations  and  has  not  since 
made  any  such  discovery;  and  that  the  lands  so  lo- 


406  FORMS— PATENT    PROCEEDINGS. 

•    • 

cated  by  him  do  not  contain  valuable  deposits  of  any 
kind,  so  far  as  known. 

That  the  plat  of  survey  and  the  notice  of  the  appli- 
cation for  patent  aforesaid  were  not  posted  in  a  con- 
spicuous place  upon  said  mining  claim.  That  if  said 
plat  and  notice  were  posted  at  all  they,  and  each  of 
them,  were  posted  where  they  could  not  be  seen. 

That  the  notice  of  application  for  patent  for  said 
mining  claim  was  published  in  a  weekly  newspaper  in 

called  the ,  a  newspaper  of  small 

circulation  and  read  by  few  persons.  That  said  notice, 
as  published,  was  defective  in  this :  That  it  failed  to 
give  the  connecting  line  of  said  mining  claim  with  a 
corner  of  the  public  surveys  or  a  United  States  min- 
eral monument.  That  it  failed  to  give  the  names  of 
the  adjoining  and  conflicting  claims,  or  the  number 
of  the  survey  thereof. 

That  the  expenditures  in  labor  or  improvement? 
upon  the  said  lodes  are  insufficient  in  amount  and 
kind  for  patent  purposes. 

That  said ,  said  applicant  for  patent,  is 

seeking  by  means  of  fraud,  deceit  and  misrepresenta- 
tion to  acquire  a  patent  for  the  lands  embraced  in 
said  mining  claim  in  that  such  lands  are  not  valuable 
for  minerals  and  the  said  alleged  mining  claims  were 
not  located  for  mining  purposes  but  for  the  purpose 
of  controlling,  so  far  as  possible,  the  use  of  a  portion 

of  the Trail  leading  from  the  terminus  of 

the  line  of  railroad  of  this  protestant  down  to  the 

walls  of  the Canon  of  the . 

River  to  said  river,  and  thereby  placing  himself  in  a 
position  either  to  prevent  the  public  from  using  said 

portion  or  to  pay  to  said such  sums  of  money 

as  he  shall  see  fit  to  exact  for  the  privilege  of  using 
said  trail. 

That  the'  boundaries  of  the  said  locations  were  so 
fixed  upon  the  face  of  the  earth  as  to  include  that  por- 


PROTEST.  407 

lion,  of  said  trail  known  as  the ,  which,  because 

of  the  topography  of  the  ground  traversed  by  it,  is 
located  upon  the  only  practicable  and  feasible  route 
for  a  trail  from  the  terminus  of  the  protestant's  line 

of  railroad  to  the River,  and  that  as  far  as 

can  be  determined  from  an  inspection,  of  the  surface 
of  the  ground  and  the  small  amount  of  excavation 
thereon,  the  course  of  the  said  alleged  mining  claims 
was  determined  by  the  course  of  the  said  portion  of 
said  trail  rather  than  by  the  course  of  any  lode  or 
mineral-bearing  vein. 

That  the  lands  embraced  in  the  so-called 

and mill-sites  are  not  now  and  never  have 

been  used  or  occupied  for  either  mining  or  milling 

purposes,  and  that  said is  seeking  to  acquire 

patent  to  said  mill-sites  and  each  of  them  by  means  of 
fraud,  misrepresentation  and  deceit  and  as  part  of  a 
scheme  devised  by  him  for  acquiring  control  of  said 

Trail  and  the  waters  flowing  in  what  is 

known  as Creek. 

That  in  carrying  out  said  fraudulent  scheme  and 

purpose  said .  .made  pretended  locations  of 

lodes  and  mill-sites  along  and  across  said  trail  from 
its  head  on  the  rim  near  the  terminus  of  the  line  of 
railroad  of  this  protestant,  to  the  foot  of  said  trail  at 

the River,  all  in  the Canon  of  the 

River,  so  located  as  to  include  the  greatest 

possible  portion  of  said  trail. 

That  the Canon  of  the River  is 

one  of  the  great  natural  wonders  of  the  world,  is  vis- 
ited by  large  numbers  of  people  from  all  parts  of  the 
world,  practically  all  of  whom  travel  over  the  line  of 
railroad  of  this  protestant  and  the  most  •  of  whom 
make  the  trip  over  said  trail  down  to  said  river. 

That  said  trail  and  said  alleged  mining  claim  and 
mill-sites  are  within  the Forest  Reserve. 

That  this  protest  is  made  for  the  purpose  of  pre- 


408  FORMS— PATENT    PROCEEDINGS. 

venting  the  consummation  of  what  protestant  verily 
believes  to  be  a  fraudulent  scheme  to  obtain  patents 
for  lands  within  a  forest  reserve  regardless  of  their 
value  for  mining  uses  and  to  secure  control  of  the 

waters  flowing  in  what  are  known  as Creeks; 

and  also  for  the  purpose  of  securing  to  the  public  and 
particularly  to  all  persons  who  travel  upon  the  pro- 
testant's  line  of  railroad  with  the  intention  of  visiting 

the Canon  of  the River  the  right 

freely  and  unrestrictedly  to  travel  upon  and  over 
said  trail  down  into  said  canon. 

Wherefore;  protestant  respectfully  prays  that  a 
hearing  be  ordered  to  allow  it  to  prove  the  foregoing 
allegations,  protect  its  legal  rights,  and  also  to  show 
cause  why  said  application  for  patent  should  be  can- 
celled. 

TIMBER   OR   STONES   ENTRY. 

Form  No.  66. 

U.  S.  Land  Office,  ,  No 

Receipt  No 

APPLICATION  AND  SWORN  STATEMENT. 
(To  be  made  in  duplicate.) 

I,  .  . (give  full  Christian  name) , 

(male  or  female),  hereby  make  application  to  pur- 
chase the ,  Section ,  Township , 

Range Meridian,  containing 

acres,  within  the Land  District,  in  the  State 

of ,  and  the  timber  thereon,  at  such  value 

as  may  be  fixed  by  appraisement,  made  under  author- 
ity of  the  Secretary  of  the  Interior,  under  the  act  of 
June  3,  1878,  commonly  known  as  the  "Timber  and 
Stone  Law/'  and  acts  amendatory  thereof,  and  in 
support  of  this  application  I  do  solemnly  swear  that  I 

(Applicant  must  state  whether  native  born,  naturalized,  or 
has  filed  declaration  of  intention  to  become  a  citizen.  If  not 
native  born,  certified  copy  of  naturalization  or  declaration  of 
intention,  as  case  may  be,  must  be  filed  with  this  affidavit.) 


TIMBER  OR  STONE   ENTRY.  409 

citizen  of  the  United  States,  of  the  age 

of years,  and  by  occupation  a ;   that  I 

did,  on ,  19. .,  examine  said  land,  and  from 

my  personal  knowledge  state  that  said  land  is  unfit 
for  cultivation  and  is  valuable  chiefly  for  its  timber; 
and  that  to  my  best  knowledge  and  belief,  based  upon 

said  examination,  the  land  is  worth dollars, 

and  the  timber  thereon,  which  I  estimate  to  be 

feet,  board  measure,  is  worth dollars,  mak- 
ing a  total  value  for  the  land  and  timber  of 

dollars,  and  no  more;  that  the  land  is  uninhabited; 
that  it  contains  no  mining  or  other  improvements,  nor, 
as  I  verily  believe,  any  valuable  deposit  of  gold,  sil- 
er,  cinnabar,  copper,  coal,  or  other  minerals,  salt 
springs,  or  deposits  of  salt ;  that  I  have  made  no  other 
application  under  said  acts;  that  I  do  not  apply  to 
purchase  the  land  above  described  on  speculation,  but 
in  good  faith  to  appropriate  it  to  my  own  exclusive' 
use  and  benefit,  and  that  I  have  not,  directly  or  indi- 
rectly, made  any  agreement  or  contract,  in  any  way 
or  manner,  with  any  person  or  persons  whomsoever, 
by  which  the  title  I  may  acquire  from  the  Government 
of  the  United  States  may  inure  in  whole  or  in  part 
to  the  benefit  of  any  person  except  myself ;  that  since 
August  30,  1890,  I  have  not  entered  and  acquired  title 
to,  nor  am  I  now  claiming,  under  an  entry  made  under 
any  of  the  non-mineral  public-land  laws,  any  amount 
of  land  which,  together  with  the  land  now  applied 
for,  will  exceed  in  the  aggregate  320  acres;  that  I  am 
not  a  member  of  any  association,  or  a  stockholder  in 
any  corporation  which  has  filed  an  application  and 
sworn  statement  under  said  act ;  and  that  my  post- 
office  address  is (if  a  city,  street  and 

number  must  be  given),  at  which  place    any  notice 
affecting  my  rights  under  this  application  may  be  sent. 
I  request  that  notice  be  furnished  me  for  publica- 
tion in  the newspaper,  published  (the  news- 


410  FORMS— PATENT    PROCEEDINGS. 

paper  must  be  one  of  general  circulation,  published 
nearest  the  land)  at 


(Sign    here,    with    full    Christian    name.) 

I  hereby  certify  that  the  foregoing  affidavit  was 
read  to  or  by  affiant  in  my  presence  before  affiant 
affixed  signature  thereto ;  that  affiant  is  to  me  per- 
sonally known  (or  has  been  satisfactorily  identified 
before  me  by. (give  full  name  and  post- 
office  address)  ;  that  I  verily  believe  affiant  to  be  a 
qualified  applicant  and  the  identical  person  herein- 
before described,  and  that  said  affidavit  wras  duly  sub- 
scribed and  sworn  to  before  me  at  my  office  in 

(town),    (county  and  state), 

within  the land   district,  this 

day  of ,  19.  .. 


(Official  designation  of  officer.) 

Note. — Every  person  swearing  falsely  to  the  above  state- 
ments may  be  punished  as  provided  by  law  for  such  offense. 
(See  Rev.  Stats.,  §  5392.) 

In  addition  thereto,  the  money  that  may  be  paid  for  the 
land  is  forfeited,  and  all  conveyances  of  the  land,  or  of  any 
right,  title,  or  claim  thereto,  are  absolutely  null  and  void 
as  against  the  United  States. 


INDEX-FORMS 


INDEX 


FORMS 


AFFIDAVITS. 

(See  Patent  Proceedings.) 


Form  No. 

1.  Annual  Expenditure. 

2.  Non-mineral. 


ARTICLES   OF    INCORPORATION. 

3.  Purposes  of  corporation. 

CONTRACTS. 

4.  Agreement  to  purchase. 

5.  Agreement  to  sell. 

5a.  Compromise  of  adverse  claim. 

6.  Grubstake  contract. 

7.  Contract  with  mining  engineer. 

8.  Oil-well  drilling  contract. 

9.  Option. 

10.  Ratification  of  option  by  stockholders. 

11.  Certificate  of  Secretary. 

12.  Instructions  to  escrow  holder. 

13.  Pooling  agreement. 

DEEDS. 

14.  Deed. 

15.  Deed  of  Trustees  for  Corporation. 

16.  Ratification  of  deed  by  stockholders. 

17.  Certificate  of  secretary. 

FORFEITURE. 

18.  Notice  of. 

LEGAL  PROCEEDINGS. 

19.  Answer — adverse  claim. 

20.  Answer — negligence. 


INDEX — FORMS.  413 

21.  Answer — underground  trespass. 

22.  Complaint — adverse  claim. 

22a.  Complaint  in  equity — adverse  claim. 

23.  Complaint  in  ejectment. 

24.  Complaint — underground  trespass   (at  law). 

25.  Complaint — do.   (in  equity). 

26.  Findings  of  fact  and  conclusions  of  law. 

27.  Instruction — annual  expenditure. 

28.  Instruction — boundaries. 

29.  Instruction — discovery — lode. 

30.  Instruction — discovery — placer. 

31.  Instruction — end  lines. 

32.  Instruction — extra-lateral  right. 

33.  Instruction — forfeiture. 

34.  Order  to   show   cause   and   restraining  order — Under- 

ground trespass. 

35.  Order  for  survey — Underground  trespass. 

36.  Petition  for  survey — Underground  trespass. 

37.  Verdict — Adverse  claim. 

LEASES. 

38.  Assignment  of  lease  and  option. 

39.  Lease  with  privilege  of  purchase. 

40.  Oil  land  lease. 

41.  Notice  of  forfeiture  of  lease. 

LOCATION    NOTICES. 

42.  Additional  and  amended  certificate  of  location. 

43.  Lode  location. 

44.  Mill-site  location. 

45.  Placer  location  (on  surveyed  land) 

46.  — •—  (on  unsurveyed  land). 

47.  Tunnel-sitev  location. 

48.  Water  location. 


PATENT  PROCEEDINGS. 

49.  Adverse  claim. 

50.  Affidavit,  charges  and  fees. 

51.  no  known  vein  exists. 

52.  posting  (final). 

53.  expenditures  on  placer  claim. 

54.  posting  (preliminary). 

55.  publication. 


414  INDEX — FORMS. 

56.  Agreement  of  publisher. 

57.  Application  for  patent. 

58.  to  purchase. 

59.  for  repayment — Letter  of  attorney. 

60;  for  survey. 

61.  Appointment,  attorney  in  fact. 

62.  Certificate  that  no  suit  is  pending. 

63.  Notice  for  posting. 

64.  for  publication. 

65.  Protest. 

66.  Timber  or  Stone  entry. 


INDEX 


/;n 


INDEX 


(The  references  are  to  the  sections  and  their  subdivisions.) 


ABANDONMENT:    See  Forfeiture. 

Definition  of,  §  72. 

Intent  controls,  §  72-2. 

How  effected,  §  72-3. 

Californian  provision,  §  72,  note  8. 

By  co-tenant,  §  72-4. 

What  is  not  an,  §  72-5;  §  72,  note  11. 

Deed  after  passes  no  title,  §  72-6. 

Proof  of,  §  72-7. 

Test  of,  §  72-8. 

What  will  warrant  assumption  of,  §  72,  note  8. 

Allegation  of  in  pleading,  §  72-9. 

Re-location  not  evidence  of,  when,  §  72,  note  11. 

Failure  to  file  adverse  claim  may  not  be,  §  72,  note  13. 

Of  oil  well,  §  121-6;  §  121,  note  8. 

ABSTRACTS  OF  TITLE,  what  to  unpatented  claim  do  not 

show,  §  68-2-3-4-5-6-7-8-9-10-11. 
Inconclusiveness  of  patent  in,  §  68-12. 
In  patent  proceedings,  §  214-4;  §  214,  note  13. 

ACCOUNTING:      See    Mining    Partnerships;     Co-tenants; 
Courts. 

ACTIONS:    See    Possessory    Actions;    Adverse    Suit;    Co- 
tenants;  Rescission;  Remedies. 

ACTS  OF  LOCATION. 

Acts  incumbent  on  locator,  §  177. 

Order  of  performance  may  be  immaterial,  §  177-3. 

ADVERSE  CLAIM:  See  Possessory  Actions;  Adverse  Suit; 
Patent  Proceedings. 


418  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
ADVERSE  CLAIM  SURVEY:   See  Patent  Proceedings. 

Definition  of,  §  38. 

What  must  show,  §  38-2. 

Not  necessary  when,  §  38-3. 

Not  made  by  Surveyor-General,  §  38-4. 

ADVERSE     POSSESSION:     See    Co-tenants;     Possession; 
Water  Rights;  Annual  Expenditure. 
Of  mining  claims  in  Alaska,  §  3-10. 
When  title  in  fee,  §  71-9. 
General  principle,  §  71-10. 
Continuity  of,  §  71-11. 
Insufficiency  of,  §  71-12. 
Effect  of  patent  upon,  §  71-13. 
As  against  homestead  entryman,  §  104-8. 

ADVERSE  SUIT:  See  Patent  Proceedings. 

Definition  of,  §  20. 

Basis  of,  §  20. 

Basis  of  intervention  in,  §  20. 

Commencement  and  prosecution  of,  §  20. 

Jury  trial  not  of  right,  §  20,  note  1. 

Jurisdiction  of  court  limited,  §  20-2. 

Burden  upon  plaintiff,  §  20-2. 

Both  parties  actors,  §  20-3. 

Pleading,  generally,  §  20-3. 

Pleading  citizenship,  §  20-3. 

Question  of  citizenship  cannot  be  primarily  raised  in 
an  appellate  court,  §  20-3. 

Each  party  must  prove  right,  §  20-3-4. 

Questions  involved  in,  §  20-4. 

May  be  dismissed,  §  20-5. 

Non-suit  may  be  granted,  §  20-6. 

Diligence  is  question  for  court,  §  20,  note  7. 

Judgment  determines  only  right  of  possession,  §  20-7. 

Province  of  land  department,  §  20-7. 

Finality  of  judgment,  §  20-8.  t 

Defendant  may  show  prior  subsisting  location  in  third 
party,  §  20,  note  16. 

What  must  be  established  in,  §  20,  note  18. 

Dates  of  filing  may  be  considered  upon  motion  to  dis- 
miss, §  20,  note  19. 

Court  cannot  pass  upon  sufficiency  of  adverse  claim  in, 
§  20,  note  19. 

Complaint  must  support  judgment  in,  §  20,  note  22. 

Equivalent  to  office  found,  §  163,  note  9. 


INDEX.  419 

(The  references  are  to  the  sections  and  their  subdivisions.) 

When  not  necessary,  §  215,  note  11. 
Continuation  of  land  office  proceedings,  §  216. 
May  be  different  judgments  in,  §  216-2. 
Effect  of  several  judgments  in,  §  216-2. 
What  court  may  not  determine  in,  §  216,  note  2. 
Duty  of  register,  §  216-3. 

Proceedings    in    general    land    office    after    judgment, 
§  216-4. 

AFFIDAVITS:  See  Patent  Proceedings. 
Where  to  be  made,  §  213,  note  7. 
When  proceedings  based  upon  void,  §  213,  note  7. 
Over  telephone  are  void,  §  213,  note  7. 

AGENTS.    May  locate  in  behalf  of  principal,  §  164. 
Subsequent  destruction  of  location  notice,  §  164-2. 
Cannot  re-locate  in  hostility  to  principal,  §  179-5. 
Personal  services  in  annual  expenditure,  §  194-3. 

AGREED  LINES:    See  Acts  of  Location. 

AGRICULTURAL  PATENT.    Mineral  land  covered  by  not 

'a  mining  claim,  §  102-7. 
Precludes  extra-lateral  right,  when,  §  111-5. 
Conveys  what,  §  206-3. 

ALASKA:   See  Tide  Lands. 

Laws  of  the  United  States  extended  to,  §  3. 
Records  and  mining  recorders  in,  §  3-2. 
Explorations  on  Behring  Sea,  §  3-3. 
Dredging  in,  §  3-4. 
Beach  claims  in,  §  3-5. 
Roadway  reservation  in,  §  3-6. 
Aliens  in,  §  3-7. 

Adverse  claims,  time  to  file 'in,  §  3-8. 
Adverse  suits,  time  to  commence  in,  §  3-9. 
Adverse  possession,  §  3-10. 
Appeals,  §  14,  note  1. 
Reciprocal  rights  in,  §  163. 

Posting   and   recording   essential    acts   of   location   in, 
§  185,  note  6. 

ALIENS:    See  Citizens  and  Aliens. 

AMENDED  LOCATION  NOTICE:    See  Amended  Location; 

Re-location  Notice. 
Purpose  of  making,  §  187. 
Californian  provision,  §  187,  and  note  1. 
Effect  of  intervening  rights,  §  187-2-3. 


420  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
AMENDED  LOCATIONS:    See  Re-locations. 

No  provision  for  in  mining  act,  §  178. 

Not  a  re-location,  §  178. 

Relation  to  original,  §  178. 

Basis  of,  §  178-2. 

Additional  discovery  not  necessary,  §  178-2. 

Additional  annual  expenditure  not  necessary  in,  §  178-2. 

Office  of,  §  178-3. 

Contents  of  notice  of,  §  178-4. 

Effect  of  original  and  amended  notice  of,  §  178-5. 

ANNUAL  EXPENDITURE:    See  Contribution. 
By  option  holder,  §  66-4-5-6. 
When  question  of  immaterial,  §  72,  note  5. 
Not  required  on  mill-sites,  §  116-7. 
In  placer  claims,  §  119-6. 
On  tunnel  sites,  §  138-3;  §  138-9. 
Re-location   cannot   be   effected   by   interference   with. 

§  179,  note  3. 
Penalty  under  state  laws   for  failure   to   make,   §  179, 

notes  7  and  8. 

Provisions  of  mining  act  in  relation  to,  §  193. 
District  rules  in  relation  to,  §  193-2. 
Place  of  performance,  §  194. 
Character  of,  §  194-2. 
Personal  services,  §  194-3. 
Exception  as  to  oil  claims,  §  194-4. 
On  group,  §  194-4-5. 

Burden  of  proof  as  to  sufficiency  of,  §  194-6. 
Upon  contiguous  locations,  §  194,  note  26. 
Attaches  to  claims  in  group  collectively,  §  194,  note  28. 
When  within  spirit  of  statute,  §  195,  note  1. 
Upon  the  surface  may  be  insufficient,  §  195,  note  1. 
Test  of  sufficiency,  §  195,  note  2. 

Compliance  with  local  statute  or  district  rule,  §  195-2. 
Payment  for  not  conclusive,  §  195-3. 
Payment  for  bears  upon  value,  §  195-4. 
Payment  for  not  essential,  §  195-5. 
Proof  of  performance  of,  §  196. 
Californian  provision,  §  196,  note  1. 
Effect  of  filing  proof  of,  §  196-3. 
Failure  to  file  proof  not  fatal,  §  196-4. 
Effect  of  non-performance  of,  §  197. 
Forfeiture  for  non-performance,  §  197-2. 
Claim  of  forfeiture  for  non-performance,  §  197-4. 


INDEX.  421 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Agricultural  claimant  can  not  raise  question  of,  §  197, 

note  4. 
What     not     sufficient     excuse     for     non-performance, 

§  197-5. 

When  adverse  claimant  cannot  complain,  §  197,  note  6. 
Resumption  of,  §  198. 
Time  for  resumption,  §  198-2. 
Effect  of  resumption,  §  198-3. 
What  is  not  resumption,  §  198-4. 
Effect  of  temporary  suspension,  §  198-5.    v 
Who  may  make,  §  199. 

Presumed  to  have  been  made  by  claimant,  §  199-2. 
Failure  to  contribute,  §  200-2-3-4-5-6-7-8. 
Californian  provision,  §  200,  note  2. 

ANTE-DATED  NOTICE  OF  LOCATION.    Fraudulent,  §  189. 
When  not  fraudulent,  §  189,  note  1. 
Nevadan  provision,  §  189-2. 

APEX  OR  TOP.     See  Top  or  Apex. 
APPEALS:    See  Courts. 

Lie  from  rulings  of  Surveyor-General,  §  39. 

By  protestant,  §  214,  note  50. 

Lie  from  rejection  of  adverse  claim,  §  215-9. 

Pendency    of    does    not   extend    time    to    file    adverse, 
'§  215-9. 

APPLICATION  TO  SUE.    When  must  be  made,  §  82-8. 

ASSAYS.    Definition  of,  §  87. 

Different  kinds  of,  §  87. 

Meaning  of  value,  §  87-2.    • 

Silver  bullion,  §  87,  note  2. 

Not  necessarily  conclusive  of  value,  §  87-3. 

Car  and  mill  samples,  §  87-4. 

May  establish  want  of  identity  of  vein,  §  112-4. 

ASSESSMENT  WORK:    See  Annual  Expenditure;  Options. 
ASSIGNMENT  OF  ERRORS:    See  Courts. 
ASSOCIATION  OF  PERSONS:    See  Deeds. 
BISECTED  DISCOVERY,  in  lode  claims,  §  154-5. 
BLANKET  SLUICE.    Definition  of,  §  88. 

BLANKET  VEIN.    Definition  of,  §  50-25. 

Extra-lateral  right  does  not  attach  to,  §  111-3. 


422  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
BLIND  VEIN.  Definition  of,  §  50-24. 

Belongs  to  surface  location,  §  50-24. 

Extra-lateral  right  does  not  attach  to  in  placer  location, 
§  111-3. 

BOARD  OF  EQUITABLE  ADJUDICATION:    See  Land  De- 
partment. 

BONA   FIDE   PURCHASER:     See  Patents;    Scrip;    Timber 
Cutting. 

BORATE  LANDS:    See  Salt  Claims. 

BOUNDARIES.     When  not  subject  to  re-adjustment,  §110, 

note  4. 
Should  be  found  as  named  in  the  location  notice,  §  149, 

note  21. 

Upon  property  adversely  held,  §  155,  note  1;  §  177-14-15. 
May  be  fixed  before  discovery,  §  168-2. 
May  exist  without  existing  location,  §  172. 
Must  be   such   as   to   be   readily   traced,    §    177-2-7-13; 

§  185-10. 

What  may  be  sufficient,  §  177,  note  7. 
Character  of  prescribed  by  local  statute  or  district  rule, 

§  177-8-9. 

May  be  insufficient,  §  177-10;  §  177,  note  9. 
Sufficiency  of  question  of  fact,  §  177-11. 
What  controls,  §  177-12. 
Monuments  as,  §  177-13. 
What  may  be  considered  as,  §  177,  note  16. 
Danger  in  adopting  survey,  §  177-18. 
May  be  changed,  §  177-19. 
Obliteration  of,  §  177-20. 

No  presumption  of  as  to  old  claims,  §  177-21. 
Must  be  established,  §  177-21. 
By  whom  placed,  §  177-22. 
End  lines,  §  177-23-24-25-26. 
Side  lines,  §  177-27-28. 
Agreed  lines,  §  177-29. 
Of  overlapping  locations,  §  180-3. 
Importance  of,  §  185-8. 
Misnaming  some  not  fatal,  §  186-7. 
Correcting  errors  in,  §  187. 
When  record  need  not  show,  §  190-6. 
Binding  upon  locator,  §  190,  note  9. 


INDEX  423 

(The  references  are  to  the  sections  and  their  subdivisions.) 

BROAD  LODE.    Lode  containing  more  than  one  vein  popu- 
larly called,  §  50-7. 
Separate  veins  within,  §  50-7-23. 
Not  comprehended  in  definition  of  vein,  §  50-20. 
Use  of  term  by  courts,  §  50-20. 
May  be  without  distinct  walls,  §  50-21. 
Indivisibility  of,  §  50-22. 

BURDEN  OF  PROOF:    See  Evidence. 

BUSINESS  OF  MINING,  definition  of,  §  101-4. 
Instrumentalities,  §  101-5. 

CALIFORNIAN  STATUTORY  LAW.   Mining  districts,  §  1-5. 
Local  rules  as  evidence,  §  19,  note  2. 
State  lands,  §  28-6-7,  §  124a-2. 
State  patents,  §  28-12-13. 
Limitation  of  actions,  §  28-12-13,  §  84-4. 
School  lands,  certain  withdrawn  from  sale,  §  28-14. 
Conservation,  §  28a. 

Land  bordering  on  waters,  §  35-8,  §  35,  note  12. 
Survey  of,  unpatented  locations,  §  40,  note  1. 
Underground  surveys,  §  40,  note  4. 
Mining  partnerships,  §  58,  note  2. 
Proceedings  to  obtain  order  to   agree   to   sell   mining 

claims,  in  probate,  §  66,  note  1. 

Summary  sale  of  mining  claims,  in  probate,  §  66,  note  1. 
Protection  of  abandoned  mining  shafts,  §  72,  note  8. 
Eminent  domain,  §  76a. 
Easements  in  mining  claims,  §  77,  note  1. 
Protection  against  liens,  >§  79-8. 
Egress  from  certain  quartz  mines,  §  80,  note  5. 
Coal  mines,  §  80,  note  6. 
Bell  signals,  §80,  note  7. 
Hours  of  labor,  §  80,  note  8. 
Employers'  liability  act,  §  80a. 
Exemptions,  §  94-2. 
Fixtures,  §  95-3. 
Miners'  inch,  §  100-2. 

Wages,  certificate  of  indebtedness,  §  101,  note  6. 
Lode  claims,  location  of,  §  110,  note  1. 
Millsites,  location  of,  §116,  note  5. 
Placer  claims,  location  of  §  119,  note  17. 
Drilling  and  abandonment  of  oil  wells,  §  121,  note  8. 
Natural  gas,  §  121a. 


424  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Hydraulic  mining,  §  123. 

Mineral  in  waters  of  streams  and  lakes,  §  124a. 

Minerals  in  waters  of  inland  lakes,  §  124a. 

Tunnel  claims,  location  of,  §  138,  note  5. 

Water,  preservation  of  from  use  in  other  states.  §  141, 

note  3. 

Water  rights,  appropriation  of,  §  143,  note  1. 
Tide  lands,  §  146,  note  1. 
Re-location  upon  failure  to  perform  assessment  work, 

§  179,  note  7. 

Amended  notice  of  location,  §  187,  note  1. 
Record,  copies  of  as  evidence,  §  190,  note  16. 
Assessment  work,  amount  required,  §  193,  note  1. 
Record  of  assessment  work,  §  196,  note  1. 
Delinquent  co-owners,  §  200,  note  2. 
Taxation  of  corporations,  §§  223-224. 

CERTIFICATE  OF  ENTRY:    See  Entry. 
Equivalent  to  patent  issued,  §  93-3. 
Basis  of,  §  93-4. 
Completes  contract  of  purchase,  §  93-5. 

CERTIFICATE  OF  LOCATION:    See  Location  Notice. 
CERTIORARI  lies  when  appeal  denied,  §  214,  note  50. 

CHARACTER  OF  LAND:    See  Contests;    Hearings. 
Land  department  determines,  §  23-2. 
Same  land  may  be  claimed  as  mineral  and  agricultural, 

§  25,  note  2. 

No  definite  boundary  as  to,  §  45-3. 
Who  may  question,  §  45-4. 
Trespasser  may  not  question,  §  45,  note  12. 
Point  of  time  for  determination,  §  45,  note  13. 
When  question  as  to  open,  §  45,  note  14. 

CHATTEL:    See  Conditional  Sale. 

CITIZENS  AND  ALIENS:  See  Possessory  Actions;  Ad- 
verse Suits. 

Either  may  locate  a  mining  claim,  §  163. 

Location  by  alien  not  void  but  voidable,  §  163-2. 

Government  only  can  attack  location  by  alien,  §  163-3. 

Effect  of  naturalization  before  judgment,  §  163-3. 

In  patent  proceedings  citizenship  of  applicant  only  in- 
volved, §  163-4. 

Patent  conclusive  evidence  of  citizenship,  §  163-4. 


INDEX.  425 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Presumption  as  to  citizenship,  §  163-5. 

Adverse  suit  equivalent  to  inquest  of  office,  §  163,  note 
9. 

Effect  of  objection  of  alienage  upon  title,  §  163,  note  9. 

Citizenship  of  trustor  and  trustee  in  patent  proceed- 
ings, §  214. 

How  citizenship  proved  in  patent  proceedings,  §  214-2. 

CLAIM,  definition  of,  §  89. 

Application  of  term,  §  89-2. 
Perfected,  §  89-3. 
Contiguous,  §  89-4. 

CLASSIFICATION  OF  LAND:    See  Mineral  Lands. 

COAL  LANDS  are  mineral  lands,  §  108. 

Not  subject  to  location  within  railroad  grant,  §  108. 

Mineral  and  non-mineral  rights  in,  §  108. 

Fee  simple  title  acquired  under  coal  land  laws,  §  108-2. 

Entry  by  legal  subdivisions,  §  108-2. 

Preferential  right,  §  108-3. 

Consolidation  of  interests,  §  108-4. 

Prospecting  in  patented  as  non-mineral,  §  108,  note  5. 

COAL  MINE.     Operating  under  Californian  law,  §80,  note 

6. 
Land  worked  as,  is  a  mining  claim,  §  102-8. 

COMPROMISE.     Valid   between  mineral   and   agricultural 

claimants,  §  24-9. 
Of  protest  illegal,  when,  §  214-19. 

Not   void    between    adverse    mineral    claimants,    §  215, 
note  27. 

CONDEMNATION   PROCEEDINGS.     Against  national  and 

state  governments,  §  28,  note  23. 
Federal  government,  §  76. 
Right  of  mineral  claimant,  §  76-2. 
Right  of  legislature,  §  76-3. 
When  mining  a  public  use,  §  76-4. 
Californian  provisions  as  to,  §  76a. 

CONDITIONAL  SALE,  chattel  remains  such  when  subject 
of,  §  95,  note  1. 

CONFLICTING  DECISIONS:    See  Courts. 

CONFLICTING  LOCATIONS:     See  Overlapping  Locations. 


426  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

CONSERVATION.     Californian  school  lands,  §28-14. 
Committee  on  in  California,  §  28a.  ' 
Coal  lands,  §  108. 
Public  domain,  §  121a. 
Natural  gas,  §  121a. 

Minerals  in  waters  of  streams  or  lakes,  §  124a. 
Fresh  water,  §  141,  note  3. 
Water  used  in  generating  power,  §  143. 

CONSOLIDATED  LOCATIONS  common  to  unite  locations, 

§  96-3. 
Annual  expenditure  upon,  §  194-4-5-6;  §  194,  note  26. 

CONSPICUOUS  PLACE,  definition  of,  §  90. 
Penalty  for  failure  to  post  in,  §  90-2. 

CONSPIRACY,  in  making  placer  locations,  §170. 
Innocent  participants,  §  170-2. 

CONTACT  VEIN,  definition  of,  §  50-33. 

CONTESTS:     See  Character  of  Land;  Hearings. 
Initiation  of,  §  24;  §  45,  note  2. 
What  protest  should  state,  §  24,  note  1. 
Grounds  of,  {f  24-2. 
Want  of  discovery,  §  24,  note  2. 
Procedure,  §  24-3. 
Notice  required,  §  24-4. 
Purpose  of  notice,  §  24-5. 
Effect  of  notice,  §  24-6. 
Effect  of  default,  §  24-7. 
Notice  after  appearance,  §  24-8. 
Compromise  of  §  24-9;  §  214-19. 
Effect  of  appearance  after  notice,  §  24,  note  12. 

CONTRIBUTION:    See  Co-tenants. 
When  may  be  demanded,  §  200. 
Effect  of  demand  for,  §  200-2. 
Character  of  title,  §  200-3. 
Basis  of  notice  for,  §  200-4. 
Californian  provision,  §  200,  note  4. 
Right  to  give  notice  for,  §  200-5. 
Contents  of  notice  for,  §  200-6. 
Personal  service  of  notice  for,  §  200-7. 
Publication  of  notice  for,  §  200-8. 


INDEX.  427 

(The  references  are  to  the  sections  and  their  subdivisions.) 
CORPORATION:    See  Deeds. 

Not  a  co-tenant,  §  59-5;  §  200-5. 

Definition  of,  §  91. 

Location  rights  of,  §  91-2;  §  119-5;  §  163,  note  3. 

Not  bona  fide  holder,  when,  §  125,  note  6. 

Right  to  patent,  §  163,  note  3. 

Patent  proof  of  existence,  §  163,  note  3. 

Stockholder  of  may  not  give  notice   for  contribution, 

§  200-5. 

Federal  excise  tax  upon,  §  220. 
Decisions    of   commissioner   under   federal   excise   tax 

upon,  §  221. 
Questions    undetermined    by    commissioner's    decision, 

§222. 

Californian  tax  upon,  §§  223-224. 
Directors  or  managers  as  trustees  of,  when,  §223-7. 

CO-TENANTS,  how  relation  of  created,  §  59. 
When  mining  partners,  §  59-2. 
When  trustees,  §  59-3. 
Termination  of  trust,  §  59-4. 
Corporation  not,  §  59-5. 
Certain  persons  not,  §  59-6. 
Divestiture  of  title,  §  59-7. 
Exclusion  from  patent,  §  59-8. 
When  rights  of  are  barred,  §  59-9. 
May  maintain  action  without  joining  other,  §  59-10. 
Questioning  title  among,  §  59-11. 
Working  claim  of,  §  59-12. 
Accounting  between,  §59-13;    §59,  note  28. 
Contribution  by  non-working,  §  59-14;  §  59,  note  29. 
Liability  for  working,  §  59-15. 
Adverse  possession  between,  §  59-16. 
Efflux  of  time  bars  accounting,  §  59-16. 
Set  off,  §  59,  note  29. 
May  abandon  individual  interest,  §  72-4. 
Cannot  re-locate,  when,  §  179-5. 
May  make  re-location,  when,  §  179,  note  12. 
Contribution  for  annual  expenditure,  §  200. 
Cannot  claim  contribution,  when,  §  200,  note  7. 

COUNTRY  ROCK,  definition  of,  §  50-41. 

COURSE  OR  STRIKE:    See  Dip. 

Definition  of,  §  50-52. 
Practical  rule,  §  50-53. 


428  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
COURTS.  Definition  of  competent  jurisdiction,  §  10. 

Jurisdiction  of  state,  §  10-2. 

Jurisdiction  of  federal,  §  10-3;  §  17. 

Removal  from  state  to  federal,  §  10-4. 

Assignment  of  errors,  §  10,  note  4. 

Remand,  §  10-5. 

Questions  without  jurisdiction  of,  §  10-6. 

When  should  not  interfere,  §  10-7. 

Necessity  for  interference,  §  10-7. 

Federal  question,  §  11. 

Jurisdictional  facts  must  be  shown,  §  11-2. 

Remedies  may  not  be  united  in  federal,  §  12. 

Uniformity  of  equitable  jurisdiction,  §  12,  note  1. 

Action  for  accounting  may  be  united  with  action  for 
trespass  in  federal,  §  12,  note  1. 

Recasting  of  pleadings,  §  12-2. 

Recasting  not  necessary  when,  §  12-3. 

Dismissal  of  cause,  §  13. 

Appeal,  federal,  §  14. 

Alaskan  appeals,  §  14,  note  1. 

Appeal,  state,  §  15. 

Writs  of  error,  §  15-2. 

Conflicting  decisions,  §  16. 

Receivers,  appointment  of,  by,  §  19-6. 

Cannot  pass  upon  sufficiency  of  adverse  claim,  §  20, 
note  19. 

Liberal  in  granting  writ  of  injunction,  §  85-4. 

CROSS  VEINS,  priority  of  title  governs,  §  50-31. 
Junior  locator  has  right  of  way,  §  50-31;  §  182. 
Ambiguity  of  term  "space  of  intersection,"  §  50-32. 

DAMAGES:    See  Licenses;   Options;  Trespass;  Mining  for 
Oil;  Timber  Cutting. 

DECLARATORY  STATEMENT:    See  Location  Notice. 

DEEDS,  must  be  in  writing,  §  67. 
What  passes  by,  §  67-2. 
Unnecessary  recitals,  §  67-3. 
Creation  of  independent  estates  by,  §  67-4. 
Effect  of  quit  claim,  §  67-5. 
Subsurface  support,  §  67,  note  6. 
To  or  from  corporation,  §  67-6;  §  223-10. 
To  unincorporated  association,  §  67-7. 
Validity  of  location   cannot  be   attacked   by  grantor, 
§  67-8, 


INDEX.  429 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Agreement  for,  §  67-9. 

Applicant  for  patent,  trustee  under,  §  67,  note  9. 

In  escrow  prior  to  entry  passes  no  title,  §  67,  note  9. 

Description  in,  §  67-10. 

Statute  of  limitations,  §  67-11. 

Taxation,  §  67-12. 

One   of   several   names    of   claim    sufficient    in,     §  67, 

note  17. 

Effect  of  tax  deed,  §  96,  note  23. 
Patent  is  quit  claim  deed,  §  206,  note  1. 
Patent  is  of  government,  §  206;  §  206,  notes  1-2. 

DEFINITIONS:    See  Appropriate  Titles. 

DEPUTY   MINERAL  SURVEYORS:     See  Patent  Proceed- 
ings. 

DESERT  LANDS,  what  are  not,  §  92. 

DIP:    See  Course  or  Strike. 
Miner's  term,  §  50-55. 

Synonymous  with  "downward  course,"  §  50-55. 
Definition  of,  §  50-55;    §  112. 
Variance  of,  §  50-55. 

Same  vein  or  lode  may  have  different,  §  50-55. 
How  measured,  §  50-56. 
Easement  or  servitude,  §  50-57. 
Following,  §  50-58. 

DIP  RIGHT:    See  Extra-Lateral  Right. 
Definition  of,  §  50-55;    §  112. 
Basis  of,  §  112-2. 
Identity  of  vein  or  lode,  §  112-3. 
Want  of  identity,  §  112-4.     ' 

DISCOVERY:    See  Deeds. 

In  forest  reserves,  §  45,  note  2. 

Not  necessary  in  mill-sites,  §  116-6. 

Subsequent  of  lode  in  placer,  §  119-4. 

In  placer  claim,  §  119-6. 

Assessment  work  not  equivalent  to,  §  119,  note  17. 

Single  in  lode  claim,  §  120,  note  8. 

In  oil  placer  claim,  §  120-20-21-23,  notes  14  and  15. 

Single  in  oil  placer  claim,  §  120-24. 

Source  of  title,  §  154. 

When  not  source  of  title,  §  154,  note  1. 

May  be  original  or  adopted,  §  154. 


430  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Must  be  actual,  §  154. 

Location  not  complete  without,  §  154-2. 

Not  necessarily  first  act  of  location,  §  154-2. 

When  subsequent  validates  location,  §  154-2. 

Requisites  of,  §  154-3. 

When  insufficient,  §  154-4-7. 

Bisected,  §  154-5. 

Single  in  placer,  §  154-6. 

Place  of,  §  154-7. 

Absence  of,  §  154-8. 

Effect  of  first,  §  154-8. 

Character  of  lode,  §  155. 

Part  of  shaft  may  be  in  other  ground,  §  155,  note  1. 

Must  be  within  location,  §  155,  note  1. 

Of  horizontal  vein,  §  155,  note  3. 

Particular  act  of  required  only  by  local  statute  or  dis- 
trict rule,  §  156. 

Preliminary  work  of  may  be  insufficient,  §  156,  note  2. 

When  work  of  an  essential  act,  §  156-3. 

Preliminary  work  protects  claim,  §  156-3. 

Where  preliminary  work  may  be  done,  §  156-4. 

What  preliminary  work  must  disclose,  §  156-4. 

Proof  of,  §  157. 

Rule  between  rival  claimants,  §  157-2. 

Reason  for  rule,  §  157-3. 

Test,  §  157-4. 

Contests  between  rival  claimants,  §  157-5. 

What  should  control,  §  157-6. 

Supplementary  evidence,  §  157-7. 

What  may  be  shown,  §  157-8-9. 

Expert  testimony,  §  157-10. 

Conclusive  testimony,  §  157-11. 

Negative  testimony,  §  157-12. 

Loss  of,  §  158. 

Sale  before,  §  158-2. 

Sale  after,  §  158-3. 

Neither  end  nor  side  lines  necessarily  equi-distant  from, 
§  173-2. 

Original,  §  177-4. 

Adopted,  §  177-5. 

DISTRICT  RULES:    See  Local  Rules,  Regulations  and  Cus- 
toms. 
May  require  additional  expenditure,  §  193-2. 

DITCH  may  be  mining  ground,  §  102-9. 
Rights  of  way  for,  §  142. 


INDEX.  431 

(The  references  are  to  the  sections  and  their  subdivisions.) 

DITCHES  AND  RESERVOIRS:    See  Easements;  Rights  of 
Way. 

DREDGE  CLAIMS  in  general,  §  124. 
Location,  §  124-2. 
Californian  provision,  §  124a. 

DUMP,  no  provision  for  in  mining  act,  §  139. 
DYKES,  definition  of,  §  50-43. 

EASEMENTS  left  to  local  law,  §  77. 
Californian  provision,  §  77,  note  1. 
Exception  as  to  right  of  way,  §  77. 
Exception  as  to  water  and  ditch  rights,  §  77-2. 
No  legal  proceedings  necessary,  when,  §  77-3. 
Condemnation  proceedings,  §  77-3. 
Damages  to  settler,  §  77-4. 

ELECTRICAL  POWER,  rights  of  way  for,  §  142. 
Appropriation  of  water  for,  §  143,  note  1. 

EMINENT  DOMAIN:     See  Condemnation  Proceedings. 
ENABLING  ACT:     See  Federal  Statutes. 

END  LINES,  courts  cannot  enlarge  location  by  new,  §  110-3. 
Presumption  as  to  relative  position  to  strike  of  vein, 

§  112-2. 

Not  necessarily  equi-distant  from  discovery,  §  173-2. 
Definition  of,  §  177-23. 
Effect  of  non-parallelism  of,  §  177-23. 
Effect  of  establishing,  §  177-24. 

Existence  of  essential  to  extra-lateral  right,  §  177-24. 
Parallelism  of  question  of  fact,  §  177-25. 
Constructive,  §  177-26. 

ENTRY:    See  Certificate  of  Entry. 
An  inceptive  right,  §  93. 
Term  sometimes  applied  to  re-location,  §  93. 
Preferential  right  of,  §  93-2. 
Certificate  of,  §  93-3. 
Cancellation  of,  §  93-6. 
Repayment  upon  cancellation  of,  §  93-7. 
Requisites  under  Homestead  law,  §  93,  note  1. 
Joint  entry,  §  119-8. 


432  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
EVIDENCE:    Miner's  rules,  §  1-10;  §  19,  note  2. 

Burden   of   proof   may    be   cast   by   land    department, 
§  26-5. 

Map  as,  §  36-6-7-8-9-10. 

In  case  of  abandonment,  §  72-7. 

In  case  of  forfeiture,  §  73-3. 

In  case  of  attack  upon  patent,  §  82-3;  §  82,  note  9. 

Effect  of  false  or  forged  documents,  §  82-9. 

Model  as,  §  85-12. 

In  case  of  identity  of  vein,  §  112-3-4. 

As  to  sufficiency  of  natural  object  or  permanent  monu- 
ment, §  151-4. 

As  to  discovery,  §  157-2-3-4-5-6-7-8-9-10-11-12. 

Required  of  re-locator,  §  177-6. 

End  lines,  §  177-25. 

In  case  of  re-location,  §  179-7. 

In  aid  of  location,  §  185-6-7-11;  §  190-11. 

Of  discovery  and  appropriation,  §  186-2-4. 

Amended  notice,  §  187. 

Re-location  notice,  §  188-3-4. 

Outside  of  record,  §  190-11. 

Californian  provision,  §  190,  note  17. 

Record  does  not  preclude  parol,  §  190-13. 

When  record  prima  facie,  §  190-14. 

Record  color  of  title,  §  190-15. 

In  case  of  annual  expenditure,  §  194,  notes  26  and  35; 
§195,  note  1;  §196,  note  5. 

Admissible   and   inadmissible   evidence    in   annual   ex- 
penditure, §  194,  note  35,  and  §  196,  note  6. 

Proof  of  performance,  §  196-3. 

Californian  provision,  §  196,  note  1. 

Settled  by  patent,  §  207-5-6-7. 

In  application  for  patent,  §  212-6,  §  213-2,  §  214-11-12, 
§  216,  note  6. 

Of   dismissal,   relinquishment  or   abandonment   of  ad- 
verse suit,  §  216,  note  6. 

EXAMINATION  OF  TITLE:    See  Title;  Abstracts  of  Title. 
EXCESSIVE  DEPOSITS:    See  Unused  Deposits. 
EXCESSIVE  LOCATIONS:    See  Locations. 
EXCISE  TAX:     See  Corporation;    Federal  Statutes. 

EXEMPTIONS,  definition  of,  §  94. 
Californian  provision,  §  94-2. 


INDEX.  433 

(The  references  are  to  the  sections  and  their  subdivisions.) 

EXPENDITURE  IN  PATENT  PROCEEDINGS:    See  Patent 
Proceedings. 

EXTRA-LATERAL  RIGHT:    See  Lode  Claims;    Dip  Right; 

End  Lines. 

Departure  from  side  lines,  §  110-4-6. 
Prior  rights  preclude,  §  110-4,  §  111-4. 
Controlled  by  form  of  location,  §  111. 
Sometimes  controlled  by  priority,  §  111. 
When  do  not  attach  to   irregularly   shaped   locations, 

§  111-2. 

Attach  to  irregularly  shaped  locations,  when,  §  111-3. 
When  do  not  attach  to  vein  or  lode,  §  111-3. 
When  priority  immaterial,  §  111-5. 
Unlawful  intrusion,  §  113. 
Securing  for  irregularly  shaped  ground,  §§  113-2;  §  180-3. 

FALSE  TESTIMONY,  will  not  defeat  patent  when,  §  82-9. 
FEDERAL  COURTS:     See  Courts. 
FEDERAL  STATUTES: 

Alaskan  mining,  §3. 
Philippine  mining,  §  5. 
Judiciary  Act  of  1911,  §  17. 
Enabling  Act,  §  120,  note  2. 
Remedial  Act,  §  120,  note  12. 
Excise  Tax  upon  corporations,  §  220. 

FINAL  CERTIFICATE:    See  Receiver's  Receipt. 

FISSURE  VEINS:    See  Vein,  Lode  or  Ledge. 
Definition  of,  §  50-19. 
Characteristics  of,  §  50-19. 
May  not  form  part  of  zone,  §  50-19. 

FIXTURES:    See  Chattel. 
Definition  of,  §  95. 
Examples,  §  95-2. 
Californian  provision,  §  95-3. 
Character  of  title  to  soil  immaterial,  §  95-4. 

FLOAT:    Definition  of,  §  99-4. 

Belongs  to  finder  when,  §  99,  note  4. 

FOREST  RESERVES,  mineral  land  within  subject  to  min- 
eral location,  §  45. 

Land  department  may  inquire  into  sufficiency  of  dis- 
covery, §  45,  note  2. 


434  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Limitation  as  to  creation  of,  §  120,  note  2. 

Timber  and  stone  in,  §  131. 

Rights  of  way  in,  §  142. 

Appropriation  of  water  in,  §  143,  note  1. 

FORFEITURE:     See  Abandonment. 
Under  district  rules,  §  1-11. 
Definition  of,  §  73. 

Distinction  between  and  abandonment,  §  73. 
Proof  in  case  of,  §  73-2;  §  73,  note  2;  §  197-3. 
Burden  of  proof,  §  73-3. 
Courts  reluctant  to  enforce,  §  73-4. 
Pleading  in  case  of,  §  73-5. 
Question  of  cannot  be  raised,  when,  §  73-6. 
In  oil  land  leases,  §  122-4. 
Term  "lapsed"  not  equivalent  to,  §  197,  note  2. 

FORMS:    See  Index  of  Forms. 

FRAUD:    See  Fraudulent  Patentee;  Patents. 

FRAUDULENT  PATENTEE  a  trustee,  §  82-4. 
Not  attack  upon  patent,  §  82-5. 
Status  of  trustor,  §  82-6. 
Charges  of  fraud  must  be  specific,  §  82-7. 
Application  to  sue,  §  82-8. 

FRAUDULENT   PLACER   LOCATION,  extent  of  right  in, 

§  170. 
Innocent  participants  in,  §  170-2. 

GRUB-STAKE  CONTRACT,  definition  of,  §  57. 
Qualified  partnership,  §  57-2. 
Not  mining  partnership,  §  57-2. 
Parties  to  are  trustees,  §  57-3. 
Right  to  property  under,  §  57-4. 
Consideration  for,  §  57-5. 
Termination  of,  §  57-6. 
Accrued  rights  not  disturbed,  §  57-7. 
Subsequent  location,  §  57-7. 

Omission  of  name  from  notice  immaterial,  §  57,  note  8. 
Duty  of  outfitter,  §  57-8.  I 

Duty  of  prospector,  §  57-9. 
What  is  not  a,  §  57-10. 
Prospector  may  pay  for  supplies,  §  67,  note  16. 

HAWAII,  local  statutes  prevail  in,  §  4. 

Land  department  without  jurisdiction,  §  4-2. 


INDEX.  435 

(The  references  are  to  the  sections  an/1  their  subdivisions.) 
HEARINGS  governed  by  Rules  of  Practice,  §  25. 

Are  of  two  kinds,  §  25-2. 

Different  parties  may,  in  good  faith,  claim  same  land 
as  of  either  class,  §  25,  note  2. 

Presumption,  §  25-3. 

Presumption  overcome  by  testimony,  §  25-3. 

Character  of  testimony,  §  26. 

Use  may  tend  to  establish  character  of  land,  §  26, 
note  1. 

Testimony  must  be  specific,  §  26-3. 

What  land  not  reserved  as  mineral,  §  26,  note  3. 

Mere  discovery  insufficient,  §  26-4. 

Burden  of  proof,  §  26-5. 

Exceptions,  §  26-6. 

Conclusiveness,  §  27. 

Segregation  survey,  §  27-2. 

Judgment  not  equivalent  to  patent,  §  27-3. 

Subsequent  legal  proceedings,  §  27-4. 

HOMESTEADS:     What  necessary  to  constitute  entry  of, 

§  93,  note  1. 

Divestiture  of  title  to,  §  104-7. 

Possession  of  between  agricultural  and  mineral  claim- 
ants, §  104-8. 

HORIZONTAL  VEIN:    See  Blanket  Vein;  Discovery. 
HORSE,  definition  of,  §  50-42. 

HYDRAULIC  CLAIMS,  definition  of,  §  123. 
Restriction  of  mining,  §  123-2. 
Constitutionality  of  act,  §  123-3. 
Unrestricted  mining,  §  123-4. 

IMPREGNATIONS,   sufficient  when   traceable   as   body  of 

ore,  §  50-62. 
When  mining  limited  by,  §  124a-2. 

IMPROVEMENTS:    See  Annual  Expenditure. 
Pass  to  re-locator,  when,  §  179-7. 
Definition  of,  §  193. 

INDEPENDENT  ESTATES:     See  Deeds. 

INDIAN  LANDS  not  subject  to  location,  §  46-2. 
May  be  leased,  §  46-2. 
May  be  declared  to  be  mineral  land,  §  46-3. 


436  INDEX. 

(The  references  are  tp  the  sections  and  their  subdivisions.) 

Patents  for,  §  46-4. 
Timber  cutting  in,  §  132. 

INDICATIONS  not  sufficient  discovery,  §  50-61. 

INJUNCTIONS:    See  Licenses. 
In  cases  of  trespass,  §  85. 
Courts  liberal  in  granting  writ,  §  85-4. 
Denial  of,  §  85-5;  §  85,  note  10. 
What  writ  should  contain,  §  85,  note  7. 

INSPECTION:    See  Trespass. 

INTERSECTING   VEINS.     Veins   intersect  upon  strike  or 

dip,  §  50-29. 

Rights  below  point  of  union,  §  50-29. 
Apex  of,  §  50-30. 

JOINT  ENTRY:    See  Entry. 

JUDGMENT:    See  Possessory  Actions;  Adverse  Suits. 

JURISDICTION:    See  Courts. 
Test  of,  §  206,  note  17. 

KNOWN  VEIN,  definition  of,  §  50-34. 

How  existence  established,  §  50-34,  §  119-3. 
Existence  of,  §  50,  note  43. 

Not  synonymous  with  located  vein,  §  50,  note  43. 
Subsequent  discovery  of  within  placer,  §  119-4. 
Good  faith  of  placer  claimant,  §  119-4. 
When  subject  to  location,  §  119-4a. 
Effect  of  excluding,  §  119-9. 
Limitation  of  surface,  §  119-10. 

What  validity  of  upon  patented  placer  depends  upon, 
§  119,  note  20. 

LABOR:    See  Annual  Expenditure. 

Definition  of,  §  193. 

IVOf  ;•» 
LACHES:    See  Co-tenants. 

Definition  of,  §  78. 

Unlike  limitation,  §  78-2. 

Equitable  defense,  §  78-3. 

Excuse  for  delay,  §  78-4. 

Measure  of  diligence,  §  78-5. 

In  relation  to  mining  claims,  §  78-5. 

What  defendant  must  show,  §  78-6. 


INDEX.  437 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Plaintiff's  allegations,  §  78-7. 
Trespass  validated  by,  §  172-6. 
Favorable  to  overlapping  locator,  §  180-7. 

LAND  DEPARTMENT:  See  Courts;  Possessory  Actions; 
Adverse  Suit;  Official  Surveys;  Contests;  Hear- 
ings. 

How  constituted,  §  23. 

Special  tribunal,  §  23. 

Powers  of,  §  23-2. 

Subordinate  officers  of,  §  23,  note  1. 

Courts  take  judicial  notice  of  regulations  of,  §  23,  note 
2. 

Action  of  courts  upon  regulations  of,  §  23,  note  2. 

Judgment  of  unassailable,  §  23-3. 

Courts  not  vested  with  supervisory  power  over,  when, 
§  23-3. 

Judgment  not  conclusive,  §  23-4. 

Board  of  Equitable  Adjudication,  §  23-5. 

Character  of  entries  submitted,  §  23-6. 

Procedure,  §  23-7. 

Appeal,  §  23-8. 

Termination  of  jurisdiction,  §  23-9. 

LAND  DISTRICTS,  definition  of,  §  41. 
Additional,  §  41-2. 

LAPSED,  not  synonymous  with  forfeiture,  §  197,  note  2. 
LAW  OF  POSSESSION,  definition  of,  §  19-2;  §  19,  note  1. 
LEASE:    See  Mining  Leases,  Oil  Land  Leases. 

LEDGE  MATTER,  definition  of;  §  50-35. 
How  recognized,  §  50-35. 
How  considered,  §  50-35. 
May  not  warrant  location,  §  50-35. 

LESSEE  cannot  re-locate,  when,  §  179-5. 
LICENSE  TAX:    See  Californian  Statutory  Law. 

LICENSES,  test  to  determine  whether  lease  or,  §  61-2a. 
Definition  of,  §  62. 
Intent,  not  form  controls,  §  62-2. 
When  revocable,  §  62-3. 
When  irrevocable,  §  62-4. 
Injunction,  §  62-5. 


438  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
LIENS:    See  Mechanics'  Liens. 

How  created,  §  79. 

Not  impaired  by  patent,  §  79-2. 

Waiver  or  loss  of,  §  79-3. 

Protection  against,  §  79-8. 

Illustrations,  §  79,  note  6. 

LIMITATION  OF  ACTIONS:    See  Co-tenants. 
On  cancellation  of  patent,  §  82-2. 
Sale  to  bona  fide  purchaser,  §  82-2. 
Junior  locator  may  acquire  by,  §  180-7. 

LOCAL    RULES,    REGULATIONS    AND    CUSTOMS,  basic 

principle  of,  §  1. 
Introduction  and  source,  §  1. 
Cause  of  establishment,  §  1-2. 
Common  law  of  mining,  §  1-3. 
Statutory  limitations,  §  1-4. 
Californian  provision,  §  1-5. 
Effect  of  absence  of,  §  1-6. 
When  void,  §  1-7. 
Presumptions,  §  1-8. 
No  distinction  between,  §  1-9. 
How  construed,  §  1-9. 
Judicial  notice  of  not  taken,  §1-10. 
Existence  must  be  proved,  §  1-10. 
When  in  force  must  be  complied  with,  §  1-11. 
Must  provide  for  forfeiture,  §  1-11. 

LOCATION:     See  Amended  Location;    Consolidated  Loca- 
tion;  Re-location. 

Test  of  as  lode  or  placer  claim,  §  47,  note  6. 
Of  lode  usually  laid  along  outcrop,  §  50-46. 
Grantor  cannot  attack  validity  of,  §  67-8. 
Refers  to  what,  §  96. 

Includes  both  lode  and  placer  claim,  §  96. 
Mining  claim  may  consist  of  several,  §  96-2.    j 
Consolidated,  §  96-3. 
Technical,  §  96-4. 
Illustrations,  §  96-5. 
As  property,  §  96-6. 
Incidents  of  ownership,  §  96-7. 
Not  community  property,  §  96-8. 
Taxation  of  possessory  right,  §  96-9. 
Of  land  not  held  by  superior  right,  §  104,  note  6. 
By  intrusion,  §  113. 


INDEX.  439 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Of  mill-sites,  §  116-6. 

Must  be  part  of  public  domain,  §  168. 

Three  kinds  of  mineral,  §  168,  note  1. 

When  title  to  vests,  §  168-2. 

Marking  of  before  discovery,  §  168-2. 

Priority  of  title  to,  §  168-3. 

Questioning  character  of  land  in,  §  168-3. 

Independent,  §  168-4. 

Oregonian  provision,  §  168,  note  9. 

Limitation  of  saline  land,  §  168-4. 

Limitation  of  mill-site,  §  168-4. 

Invalid  or  incomplete,  §  168-5. 

Form  of  lode,  §  168-6. 

Form  not  absolutely  essential,  §  168,  note  14. 

Form  of  placer  in  Alaska,  §  168,  note  14. 

Effect  of  form  of  lode,  §  168-6. 

Form  of  placer  on  surveyed  land,  §  168-7. 

Form  of  placer  must  conform  to  law,  when,  §  168-8. 

Form  of  placer  in  California,  §  168,  note  16. 

May  be  made  upon  a  holiday,  §  168-9. 

Equivalent  of,  §  169. 

Fraudulent  placer,  §  170. 

Innocent  participants  in  fraudulent  placer,  §  170-2. 

Voidable,  §  171. 

Void,  §  172. 

Timber  may  be  an  incentive  to  make,  §  172-5. 

Trespass  upon  initiates  no  rights,  §  172-6. 

Trespass  validated  by  laches,  §  172-6. 

Size  of  lode,  §  173. 

Measurement  of  lode,  §  173-2. 

Presumption  as  to  measurement  of  lode,  §  173-3. 

Excessive  size  of  lode,  §  173-4. 

Fraud  presumed,  §  173,  note.  10. 

Segregation  of,  §  173-5. 

Reasonable  time  to  segregate,  §  173-6. 

Size  of  placer,  §  174. 

Excessive  size  of  placer,  §  174-2;  §  173,  note  10. 

Size  of  tunnel  sites,  §  175. 

Excessive  size  of  tunnel  site,  §  175-2. 

Size  of  mill-site,  §  176. 

Form  of  mill-site,  §  176-2. 

Acts  of,  §  177. 

Insufficiency  of  acts  of,  §  177-10. 

What  valid  secures  to  locator,  §  179,  note  3. 

When  void,  ab  initio,  §  180,  note  11. 

When  equivalent  to  patent,  §  206,  note  16. 


440  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
LOCA'TION  MONUMENTS:    See  Boundaries. 

LOCATION  NOTICE:    See  Record  of  Location. 

Of  mill-site,  §  116,  note  5. 
Of  placer  claims,  §  119,  note  17. 
Not  required  by  mining  act,  §  185. 
Supplementary  legislation  affecting,  §  185-2. 
Contents  of,  §  185-3,  §  186-3-11. 
Additional  recitals,  §  185-4. 
When  omissions  in  fatal,  §  185-4. 
Not  part  of  location,  when,  §  185-5. 
When  question  of  sufficiency  arises,  §  185-6. 
.    Oral  testimony  may  aid,  §  185-7,  §  186-4. 
Construction  of,  §  185-9. 
Sufficiency  of,  §  185-10,  §  186-3. 
Under  federal  law  not  necessary  to  state  character  of 

mineral  in  placer,  §  186,  note  4. 
Protection  to  locator,  §  186. 
Description  in,  §  186-5. 
Errors  in  description,  §  186-7. 
Surplusage  in,  §  186-8. 
Where  posted,  §  186-9. 
Miners'  devices,  §  186-10. 
Presumption,  §  186-11. 
Purpose  fulfilled,  when,  §  186-11. 
Amended,  §  187. 
Re-location,  §  188. 
Record,  §  190. 
When  description  binding  on  locator,  §  190,  note  9. 

LOCATORS:    See  Citizens  and  Aliens;  Agents. 

Right  of  competent  to  initiate  claim,  §  104,  note  6. 
Character  of  right  granted  to,  §  162;  §  162,  note  1;  §  179, 

note  3. 

Basis  of  possession,  §  162-2. 
How  rights  may  be  lost,  §  162-3. 
Renunciation  of  rights,  §  162-4. 
Who  may  not  be,  §  165. 
Age,  sex,  residence  or  citizenship  of  immaterial,  §  168-10. 

LODE:     See  Vein,  Lode  and  Ledge. 

LODE  CLAIMS:    See  Extra-Lateral  Right. 

Definition  of,  §  110. 

Californian  provision,  §  110,  note  1. 

Must  include  top  or  apex,  §  110-2. 


INDEX.  441 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Exclusive  right  of  surface,  §  110-3. 

Courts  cannot  enlarge,  $  110-3,  §  110,  note  4. 

Exclusive  right  of  all  veins,  §  110-4. 

It  is  presumed  that  include  a  vein  or  lode,  §  110-5. 

Limitation  is  as  to  size,  not  shape,  §  111,  note  1. 

LODE  WITHIN  PLACER  CLAIM  subject  to  location,  when, 

§  181. 

Presumption  in  favor  of  placer  claimant,  §  181-2. 
Trespass  upon,  §  181-3. 
Not  a  trespass  upon,  §  181-4. 
Limitation  as  to  area,  §  181-5. 

MAPS  must  be  supported  by  competent  evidence,  §  36-5-6. 
Testimony  of  surveyor,  §  36-8. 
Fabricated  survey,  §  36-9. 
Does  not  put  lode  in  claim,  §  36-10. 

MARKETABLE  TITLE:    Want  of  insufficient  grounds  for 
rescission,  §  83-9. 

MARKINGS,  definition  of,  §  97. 

MARKS:    See  Markings;  Boundaries;  Monuments. 

MASTER  AND  SERVANT.    Safe  place,  §  80. 
Fellow  servants,  §  80-2. 
Assumption  of  risk,  §  80-3. 
Legislative  safeguards,  §  80-4. 
Limitation  of  hours  of  labor,  §  80-5. 
Californian    law    in    relation    to    Quartz    Mines,    Coal 

Mines,   Bell   Signal   Acts,   and   Hours   of  Labor. 

§80,  notes  5,  6,  7,  8.    ' 
Constitutionality  of  act,  §  80-6. 

MEANDER    LINES:      See    Public   Land    Surveys;    Dredge 
Claims. 

MECHANICS'  LIENS:    See  Liens. 
Creature  of  local  statute,  §  79-4. 
Purpose  of,  §  79-5. 
Contract  essential,  §  79-6. 

Option  holder  not  vendee  nor  agent,  §  79,  note  12. 
Protection  of  owner,  §  79-7. 
Statutory  requirement,  §  79-8. 
Indemnification,  §  79-9. 
Subordinate  to  mortgage,  §  79-10. 


442  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

METAL:    See  Mineral. 

• 

MEXICAN  GRANT,  mineral  locations  may  be  made  in  un- 
confirmed, §  45. 
Mine  within,  not  a  mining  claim,  when,  §  102-6. 

MILITARY  RESERVATIONS,  mineral  location  may  not  be 
made  in,  §  46. 

Timber  cutting  in,  §  133. 

MILL-SITES,  what  may  be  located  as,  §  116. 
What  may  not  be  located  as,  §  116-2. 
Character  of  land,  §  116-3;  §  214,  note  5. 
Mining  and  milling  purposes,  §  116-4. 
Who  may  locate,  §  116-5. 
Not  a  mining  claim,  §  116-6. 
May  be  mining  claim  or  possession,  §  116-6. 
Manner  of  location,  §  116-6. 
No  specific  time  for  use,  §  116-7. 
Annual  expenditure  not  required  upon,  §  116-7. 
Patenting  of,  §  116-8. 
Californian  provision,  §  119,  note  17. 

MINE,  definition  of,  §  98. 

How  existence  of  determined,  §  98-2. 
Synonymous  with  vein  or  lode,  §  98-3. 
Includes  mines  valuable  for  minerals  or  valuable  min- 
eral deposits,  §  98-3. 
When  used  as  descriptive  name,  §  98-4. 
Want  of  identity,  §  98-5. 

MINER,  definition  of,  §  101-8. 

MINERAL:     See  Mineral  Deposits. 

Definition  of,  §  99. 

Term  should  not  be  confined  to  metals  or  metallic  ores, 

§  99,  note  1. 

All  metals  are,  §  99,  note  1. 
Substances,  §  99-2. 
When  within  purview  of  mining  laws,  §  99-3. 

MINERAL  DEPOSITS:    See  Mineral;  Mineral  Lands. 

What  declared  by  Congress  to  be,  §  47. 
Test  for  location,  §  47,  note  6. 

What   the   courts   and   the   land   department  have   de- 
clared to  be,  §  47. 


INDEX.  443 

(The  references  are  to  the  sections  and  their  subdivisions.) 
MINERAL  DISTRICT:    See  Mining  District. 
Definition  of,  §  42. 

MINERAL  LANDS:    See  Mineral;   Mineral  Deposits. 
What  subject  to  location  as,  §  45. 
Land  valuable  for  its  mineral  deposits  defined,  §  45-2. 
Classification  of  land,  §  45-3. 
Character  conclusively  determined  by  land  department, 

§  45-4;  §  154,  note  2. 

When  question  of  character  usually  arises,  §  45-4. 
What  lands  not  subject  to  location  as,  §  46. 
Test  as  to  form  of  locating,  §  47,  note  6. 
Equivalent  terms,  §  135,  note  5. 

MINERAL  RIGHT:    See  Mining  Right. 
Definition  of,  §  103,  note  1. 

MINERALS  IN  WATER:  Right  to  mine  limited  in  Cali- 
fornia, §  124a. 

MINERS'  DEVICES,  for  protection  of  posted  notice,  §186- 
10. 

MINER'S  INCH  not  definite  when,  §  100. 
Californian  provision,  §  100-2. 

MINERS'  RULES:  See  Local  Rules,  Regulations  and  Cus- 
toms. 

MINING:  See  Prospecting  and  Mining;  Process  of  Mining; 
Process  of  Milling;  Business  of  Mining;  Super- 
intendent; Shift  Boss;  Miner;  Mining  for  Oil. 

MINING  CLAIM:    See  Mining  Qround. 

Unpatented  held  by  peculiar  title,  §89,  note  3. 

And  location  used  interchangeably,  §  96-2. 

May  consist  of  several  locations,  §  96-2. 

Definition  of,  §  102. 

Statutory  meaning,  §  102-2. 

Distinction  between  and  location,  §  102-3. 

Distinction  between  and  mining  ground,  §  102-4. 

Navigable  river  not  a,  §  102-5. 

Mexican  grant  not  a,  §  102-6. 

Agricultural  patented  land  not  a,  §  102-7. 

Oil  claim  is  a,  §  102-8. 

Coal  mine  is  a,  §  102-8. 

Unworked  placer,  in  probate  proceedings,  §  102-10. 


444  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

MINING   CLAIM    OR    POSSESSION:      Definition   of,   §135, 
note  5. 

MINING  DISTRICT:    See  Mineral  District. 
Definition  of,  §  43. 
Extent,  §  43-2. 

Changing  boundaries,  §  43-3. 
No    certain   number   of   persons    necessary    to    create, 

§  43-4. 

Corporation  may  help  to  form,  §  43-5. 
Mode  of  organization  not  subject  of  inquiry,  §  43-6. 
Effect  of  fraud,  §  43-6. 
Officers  of,  §  43-7. 
Duties  of  recorder  of,  §  43-8. 
Recorder's  errors  not  necessarily  fatal,  §  43-8. 

MINING  FOR  OIL,  how  safely  conducted,  §  121. 
No  limit  to  drainage,  §  121-2. 
Unlawful  drainage,  §  121-3,  note  3. 
Possession  of  land  not  possession  of  oil,  §  121-4. 
When  a  nuisance,  §  121-5. 
Californian  provision,  §  121-6. 
Text  of  Californian  act  regulating,  §  121,  note  8. 
Diligence  in  drilling  to  success  or  abandonment,  §  121-8. 
Test  well,  §  121-9. 
Partnership,  §  121-10. 

Limitation  as  to  power  of  partners  in,  §  121-11. 
Partition,  §  121-12. 
Damages,  §  121-13;  §  121,  note  3. 

MINING  GROUND:    See  Mining  Claim. 

Distinction  between,  and  mining  claim,  §  102-3. 
Navigable  river  may  be,  §  102-5. 
Agricultural  patented  land  may  be,  §  102-7. 
Ditch  may  be,  §  102-9. 

MINING  LAND,  definition  of,  §  102-4;  §  120,  note  1. 

MINING  LEASES:    See  Oil  Land  Leases. 
Have  peculiar  details,  §  61. 
Sometimes  coupled  with  option,  §  61. 
Time  essence  of,  §  61. 
When  contract  of  labor,  §  61. 
Meaning  of  continuously,  §  61-2. 
Stoping,  §  61-3. 

Royalty,  implies  diligent  exploration,  §  61-4. 
Extension  of  rights  under,  §  61-4. 


INDEX.  445 

(The  references  are  to  the  sections  and  their  subdivisions.) 

MINING  PARTNERSHIPS:    See  Grub-stake  Contract;    Co- 
tenants;  Mining  for  Oil. 
Distinct  from  ordinary,  §  58. 
Peculiar  rules  applicable  to,  §  58-2. 
Essential  difference  between  and  ordinary,  §  58-3. 
How  created,  §  58-4. 
General  partners,  when,  §  58-5. 
Partners  are  trustees,  §  58-6. 
Control  of  partnership  property,  §  58-7. 
Debts,  §  58-8. 
Liens,  §  58-9. 
Accounting,  §  58-10. 
Dissolution  of,  §  58-11. 
Sale  by  partner,  §  58-12. 

MINING  RECORDER:    See  Mining  District. 

MINING  RIGHT:    See  Mineral  Right. 
Not  capable  of  partition,  §  81-4. 
Definition  of,  §  103. 
Is  a  species  of  trade,  §  103-2. 
Qualified  partnership  in,  §  103-3. 

MINING  TITLE,  definition  of,  §  103-4. 
MODEL  as  evidence,  §  85-12. 

MONUMENTS:    See  Marks;   Boundaries. 

Control  courses  and  distances,  when,  §  151,  note  17. 

Do  not  mark  boundaries,  §  177-13. 

Written  notice  sufficient,  §  177-13;  §  177,  note  7. 

Position  of,  §  177-14. 

May  be  upon  patented  or  unpatented  ground,  §  177-14. 

Consent  to  place,  §  177-15. 

Limitation  as  to  placer,  §  177-17. 

Placer  in  California,  Nevada,  Washington,  §  177-17. 

Discrepancy  as  to  government,  §  177-18. 

Changing  position  of,  §  177-19. 

Obliteration  of,  §  177-20. 

When  existence  of  must  be  established,  §  177-21. 

By  whom  placed,  §  177-22. 

MORTGAGE,  may  require  assent  of  stockholders,  §  67,  note 

10. 
When  subordinate  to  lien,  §  79-10. 

MORTGAGEE.    Annual  expenditure  by,  §  79-10. 
MORTGAGOR  cannot  re-locate,  when,  §  179-5. 


446  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
NAME  OF  LODE.    Meaning  of  "this  vein,"  §  186-5. 
Different  in  different  locations,  §  186-6. 

NATURAL  GAS,  prevention  of  waste  in  California. 
Definition  of,  §  120a. 

NATURAL  OBJECT:    See  Permanent  Monument. 
Definition  of,  §  149. 

Not  always  possible  to  refer  to,  §  149-2;   §  185-3. 
Is  starting  or  initial  point,  §  151. 
Purpose  of  reference  in  record,  §  151-2. 
Failure  to  refer  to  in  record  is  fatal,  §  151-2. 
Imperfections  in  reference  to  should  not  vitiate,  §  151-2; 

§  151,  note  8. 

Reference  should  identify  claim,  §  151-2. 
Sufficiency  a  question  of  fact,  §  151-2. 
When  any  sufficient,  §  151-3. 
Presumptions  as  to  sufficiency,  §  151-3. 
May  be  on  or  off  location,  §  151-3. 
Burden  of  proof,  §  151-4. 
Ties  to,  §  151,  note  8. 

NITRATE  LANDS:    See  Salt  Claims. 

NOTICE,  in  land  office  proceedings,  §  24-4-8;  §  24,  note  12; 
§  214,  note  23. 

NOTICE  OF  LOCATION:    See  Location  Notice. 
NUISANCE:    See  Mining  for  Oil;  Water-Rights. 

OBLITERATION  OF  MARKS,  when  without  fault  or  act  of 

claimant,  §  177-20. 
OFFICIAL  SURVEY:    See  Patent  Proceedings. 

Is  one  made  in  course  of  patent  proceedings,  §  36. 

Lode  claim  survey,  §  36-2. 

Placer  claim  survey,  §  36-3. 

Connecting  line,  §  36-4. 

Effect  of  failure  to  refer  to  connecting  line,  §  36-5. 

When  agricultural  claimant  must  prove  mineral  char- 
acter under,  §  37-2. 

May  be  made  one  day  after  location,  §  211-9. 

OIL-BEARING  STRATA,  definition  of,  §  47,  note  51. 

OIL  CLAIMS:    See  Mining  for  Oil;  Oil  Land  Leases. 
Land  worked  as,  is  a  mining  claim,  §  102-8. 
When  subject  to  location,  §  120. 


INDEX.  447 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Oil  is  a  mineral  substance,  §  120,  note  1. 

Preservation  of  rights  in,  §  120-2. 

Text  of  Enabling  Act,  §  120,  note  2. 

Withdrawal,  definition  of,  §  120-3. 

When  withdrawal  takes  effect,  §  120-3. 

Withdrawals  in  California,  §  120-4. 

The  power  of  the  President,  §  120-5. 

Act  of  June  25,  1910,  purpose  of,  §  120-6. 

Construction  of  Enabling  Act,  §  120-7. 

Protection  under  saving  clause,  §  120-8. 

Opinion  of  the  writer,  §  120-9. 

Peculiar  conditions  incident  to,  §  120-10. 

Questions  arising  from  conditions,  §  120-11. 

Conflict  of  authority,  §  120-12. 

Established  law,  §  120-13. 

Forcible  entry  and  detainer,  §  120-14. 

Possessio  pedis,  §  120-15. 

Effect  of  conveyance  of  before  discovery,  §  120-16. 

Departmental  ruling  upon  conveyance  before  discovery, 

§  120-17. 

Confusion  in  land  titles,  §  120-18. 
Rule  of  property,  §  120-19. 
Remedial  legislation,  §  120-19-a-b-c-d. 
Text  of  Remedial  Act,  §  120,  note  12. 
Discovery,  definition  of,  §  120-20. 
Insufficient  discovery,  §  120-21. 
Possession  while  making  discovery,  §  120-22. 
Good  faith  in  locator  necessary,  §  120-23. 
Single  discovery  may  be  sufficient,  §  120-24. 
Scripping,  §  120-25. 
Limitation  of  group  of  in  annual  expenditure,  §  194-4. 

OIL  LAND  LEASES:    See  Leases. 
Peculiar  nature  of,  §  122. 
How  construed,  §  122-2. 
Implied  covenants,  §  122-3. 
When  re-entry  warranted,  §  122-4. 
Vested  right,  §  122-5;  §  122,  note  7. 
Taxation,  §  122-7. 

Distinction  between  oil  and  solid  minerals,  §  122,  note  7. 
"Grant"  and  "lease"  interchangeable  terms,  §  122,  note 
7. 

OIL  MINING:    See  Mining  for  Oil. 

OKLAHOMA,   lands   subject   to   mineral   location   in,   §46, 
note  4. 


448  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
OPTIONS,  definition  of,  §  66. 

May  be  a  license  or  covenant,  §  66. 

May  be  coupled  with  a  lease,  §  66. 

Time  essence  of,  §  66. 

How  secured  in  California  from  estate  in  probate,  §66, 
note  1. 

Distinction  between  and  contract,  §  66-2. 

When  merely  offer  of  sale,  §  66-3,  note  7. 

Sufficient  consideration,  §  66-4. 

Duty  of  owner,  §  66-5. 

Damages,  §  66-6. 

May  be  agreement  to  sell,  §  66,  note  6. 

Default  in  payments,  §  66-7. 

When  parties  to  mutually  bound,  §66,  note  7. 

Option  holder  is  neither  vendee  nor  agent,  §  79,  note  12. 

ORE.    Error  in  estimating  ore  in  sight,  §  99-4. 
Definition  of,  §  99-5. 
Ore  in  sight,  §  99-6. 
Personal  property,  §  99-7. 
Reliance  upon  statements  of  ore  in  sight,  §  99,  note  7. 

OREGON,  limitation  upon  lode  locations,  §  168,  note  9. 
OTHER  ROCK  IN  PLACE,  definition  of,  §  50-38. 

OUTCROPPINGS,  definition  of,  §  50-44. 

Sometimes  used  synonymously  with  top  or  apex,  §  50-44. 

Identity  of  vein  and  outcrop,  §  50-45. 

Are  not  essential,  §  50-46. 

Locations  usually  laid  along,  §  50-46. 

Existence  of  does  not  establish  mine,  §  50,  note  94. 

OVERLAPPING  LOCATIONS  cannot  affect  valid  subsisting 

location,  §  179,  note  3. 
Of  common  occurrence,  §  180. 
How  caused,  §  180. 

When  awarded  to  junior  locator,  §  180. 
Basis,  §  180-2. 

Boundary  marks  of,  §  180-3. 
Consent  of  owner,  §  180-4. 
When  re-location  necessary,  §  180-5. 
Failure  to  adverse,  §  180-6. 
Title  to  by  efflux  of  time,  §  180-7. 

PARTITION:    See  Co-tenants;  Mining  for  Oil. 
Mining  claims  subject  to,  §  81. 
Suit  for  usually  results  in  sale,  §  81. 


INDEX.  449 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Why  suit  for  usually  results  in  sale,  §  81,  note  3. 

Agreed,  §  81-2. 

Arbitration,  §  81-3. 

Mining  right  not  capable  of,  §  81-4. 

PARTNERSHIP:    See  Mining  Partners;  Mining  for  Oil. 
Re-location  by  member  of,  §  179-5. 

PATENT  PROCEEDINGS  (In  General). 

Refusal    of    application,    §29-5;    §214,    note    1;    §216, 

note  3. 

Who  may  obtain  patent,  §  211. 
Manner  of  obtaining  patent,  §  211-2. 
Limitation  as  to  mill-sites,  §  211-3;  §  214,  note  5. 
Limitations  as  to  saline  lands,  §  211-3;  §  214,  note  8. 
Survey  of  claims,  §  211-4. 

When  all  placer  ground,  §  211-5;  §  214,  note  6. 
Mixed  lode  and  placer,  §  211-6. 
Waiver  of  known  vein,  §  211-7. 
Adverse  claimant,  §  211-8. 
Time  to  apply  for  patent,  §  211-9. 
Place  for  filing  application,  §  211-10. 
Time  to  complete  application,  §  211-11. 
Completion  of  application,  §  211-12. 
Payment  for  land,  §  211-13. 
Divers  patents,  §  211-14. 

(The  Survey). 

Application  for,  §  212. 

To  whom  application  for  addressed,  §  212. 

Accompanying  papers,  §  212-2. 

Deputy  surveyor,  §  212-3. 

Duties  of  deputy,  §  212-4. 

Errors  of  deputy,  §  212-5.     . 

Expenditure  upon  claim,  §  212-6. 

Conclusiveness  of  certificate,  §  212-7. 

Equivalent  of  certificate,  §  212-8. 

Basis  of  deputy's  report,  §  212-9. 

Sufficient  expenditure,  §  212-10. 

Insufficient  expenditure,  §  212-11. 

Plat  and  field  notes,  §  212-12. 

Return  of  unused  deposits,  §  212,  note  4. 

Oaths  of  assistants,  §  212,  note  10. 

(Plat  and  Notice). 

Nearest  newspaper,  §  200,  note  14. 
Contents  of  notice,  §  213. 


450  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Where,  how,  and  for  how  long  posted,  §  213. 

Proof  of  posting,  §  213-2. 

Place  for  making  affidavits,  §  213,  note  7. 

Time  for  filing  proof,  §  213-3. 

Copies  required,  §  214-6. 

Contents  of,  §  214-7. 

Sufficiency  of,  §  214-7. 

Insufficient,  §  214-8. 

Publication  of,  §  214-9. 

Charges  for  publication  of  §  214-10. 

Proof  of  publication  of,  §  214-11. 

Proof  of  continuous  posting,  §  214-12. 

When  modification  of  necessary,  §  214,  note  20. 

Equivalent  to  summons,  §  214,  note  23. 

Designation    of    newspaper    subject    to    review,    §  214, 

note  25. 

Computation  of  time,  §  214,  note  30. 
(Application  for  Patent). 
Made  by  whom,  §  214. 
Contents  of,  §  214. 
Possessory  title  of  applicant,  §  214,  note  13. 

(Citizenship). 

How  shown,  §  214-2. 

(Attorney). 

Applications  for  patent  may  be  made  by  attorney  in 

fact,  §  214-3. 
When  appointment  not  effective,  §  214,  note  12. 

(Abstract  of  Title). 

Subsequent  transfers,  §  67,  §  214-5. 

Contents  of,  §  214-4. 

Supplemental,  §  214,  note  13. 

By  whom  certified,  §  214-4. 

W^hat  certificate  abstracter  must  furnish,  §  214-4. 

(Fees  and  Charges). 

Statement  of  paid,  §  214-13. 
(Application  to  Purchase). 

In  writing  to  be  filed,  §  214-14. 

(Receiver's  Receipt). 

Equivalent  to  patent,  §  93-3;  §  214-15. 

When   not   sufficient    to    prevent    annual    expenditure, 

§  214-15. 
Names  of  trustor  and  trustee  to  be  inserted  in,  §  214, 

note  9. 


INDEX.  451 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Not  equivalent  to  patent,  §  214-15. 

May  be  cancelled,  §  214-15. 

When  void,  §  214-15. 

No  annual  expenditure  required  after  issuance,  when, 

§  214-15. 

After  issuance  record  forwarded,  §  214-16. 
Cancellation  of  not  necessarily  fatal,  §  214-20. 

(Protest). 

By  whom  may  be  filed,  §  24;  §  214-17;  §  215-2. 

Grounds  of,  §  214-18;  §  215,  note  10. 

Waiver  of,  §  214-19. 

May  delay  patent,  §  214-20. 

Confined  to  land  department,  when,  §  214-20. 

Cancellation  of  entry,  §  214-21. 

Appeal  by  protestant,  §  214,  note  50. 

Distinction  between  and  adverse,  §  215-2. 

When  may  be  filed,  §  215-2. 

Sometimes  has  effect  of  adverse,  §  215-2. 

Cannot  take  place  of  adverse,  §  215,  note  10. 

(Adverse  Claim):    See  Adverse  Suit. 

Effect  of  senior  locator's  failure  to  file,  §  180-6. 

Limited  to  surface  conflicts,  §  215. 

Distinction  between  and  protest,  §  215-2. 

Filing  protest  after  loss  of  right  to  file,  §  215-2. 

No  equitable  right  lost  by  failure  to  file,  §  215-2. 

Contents  of,  §  215-3. 

Time  of  filing,  §  215-4. 

Computation  of  time,  §  215-5. 

No  extension  of  time,  §  215-6. 

Effect  of  filing,  §  215-7. 

Evidence  of  waiver,  .§  215-8. 

Appeal  lies  for  rejection  of;  §  215-9. 

Not  necessary  to  file  when,  §  215.  note  11, 

By  whom  verified,  §  215,  note  12. 

Effect  of  failure  to  comply  with  rules,  §  215,  note  12. 

For  sufficiency  of,  §  215,  note  13. 

For  insufficiency  of,  §  215,  note  13. 

May  be  amicably  adjusted,  §  215,  note  27. 

PATENTS:      See  Co-tenants;   Abstracts  of  Title;   Adverse 
Possession;  Liens;  Fraudulent  Patentee;  Patent 
Proceedings. 
When   application   for   will   be   rejected,   §29-5;    §214, 

note  1. 
May  be  cancelled,  §  82. 


452  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Bona  fide  purchaser,  §82-2;   §134-2. 

Burden  of  proof,  §  82-3. 

Concealment  of  facts  not  basis  for  attack  upon,  §  82, 

note  12. 

Agricultural,  §102-7;   §111-5;   §116-8. 
For  mill-sites,  §  116-8. 

For  placer  claims,  §119-7;  §168-8;   §181-5. 
.     None  for  tunnel-sites,  §  138-11. 

Money  expended  on  tunnel-sites  counted  in  proceedings 

for,  §  138-11. 

Conclusive  evidence  of  citizenship,  §  163-4. 
Evidence  of  corporate  existence,  §  163,  note  3. 
Under  statute  of  limitations,  §  169-2. 
Improvements  in  proceedings  for,  §  179-9. 
For  lode  subsequent  to  placer,  §  181-5. 
Definition  of,  §  206. 
When  to  be  applied  for,  §  206. 
Effect  of  recording,  §  206,  note  1. 
Not  essential,  §  206-2;  §  206,  note  8. 
What  passes  by  lode,  §  206,  notes  2  and  4. 
Adds  but  little  to  security,  §  206-2. 
Distinction  between  agricultural  and  mineral,  §  206-3. 
Placer  convey  what,  §  206-5. 
Lode  claim  may  exist  within  placer,  §  206-5. 
Receiver's  receipt  equivalent  to,  §  206-6. 
When  void,  §  206-7. 

Voidable  subject  to  cancellation,  §  206-8. 
When  not  assailable,  §  206,  note  17. 
Superior  and  exclusive  evidence  of  legal  title,  §  207. 
Equitable  title,  §  207-2. 
Suit  to  declare  trust  before,  §  207,  note  2. 
Superiority  of  title,  §  207-3. 
Priority  of  title,  §  207-4. 
Facts  settled  by,  §  207-5. 
Presumptions  attending,  §  207-7. 
State  legislation  concerning,  §  208. 
Different  in  same  ground,  §  211-14. 
Effect  of  erroneous  description  in,  §  211-15. 
Obtained  without  regard  to  change  in  ownership,  §  214, 

note  17. 
When  will  issue,  §  216-4. 

PAYMENT  for  lode  or  placer,  §  211-13;  §  216-2. 
PEDIS  POSSESSIO,  definition  of,  §  71,  note  6. 
PERJURY:    See  Patents. 


INDEX.  453 

(The  references  are  to  the  sections  and  their  subdivisions.) 

PERMANENT  MONUMENT:     See  Natural  Object. 
Definition  of,  §  150. 

PETROLEUM  OIL  CLAIMS:    See  Oil  Claims. 

PHILIPPINE  ISLANDS,  special  mining  act  for,  §  5. 
Dissimilar  provisions,  §  5-2. 
Land  department  without  jurisdiction,  §  5-4. 

PLACER  CLAIMS:    See  Dredge  Claims;  Hydraulic  Claims; 

Oil   Claims;    Mining  for  Oil;    Oil  Land  Leases; 

Salt  Claims;  Stone  Claims;  Tailings;  Location. 
Definition  of,  §  119. 
Location  rights  in,  §  119-2. 
Known  vein  within,  §  119-3. 
Conflicting  locations,  §  119-4a. 
Area  of,  §  119-5. 

Discovery,  marking  and  annual  expenditure,  §  119-6. 
Patenting,  §  119-7. 
Joint  entry  of,  §  119-8. 
Effect  of  excluding  known  vein,  §  119-9. 
Limitation,  §  119-10. 
Form  of,  §  168-7. 
Size  of,  §  174. 
Excess  may  not  invalidate,  §  174-2. 

PLACERS:    Definition  of,  §  99-8. 
Include  what,  §  99-8. 
Surface  workings,  §  99-9. 
Unworked  may  not  be  a  mine,  §  102-10. 

PLEADING,  in  federal  courts,  §  11-2;  §  12. 
In  possessory  actions,  §  19-3* 
Citizenship,  §19-4;  §20-3. 
In  adverse  suits,  §  20-3. 
Descriptive  name,  §  67,  note  17. 
In  case  of  abandonment,  §  72-9. 
In  case  of  forfeiture,  §  73-5. 
In  case  of  laches,  §  78-6-7. 

In  case  of  attack  or  annulment  of  patent,  §  82-6,  note  9. 
In  cases  of  trespass  or  waste,  §  85-11. 

PORTO  RICO.    Control  of  public  land,  §  6. 

POSSESSION,  valid  location  carries  right  of,  §  71. 
Meaning  of  actual,  §  71-2. 
Actual  not  required,  §  71-3. 


454  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Effect  of  actual  without  boundaries,  §  71-4. 

Constructive,  §  71-5. 

Constructive  without  discovery,  §  71-6. 

Pedis  possessio,  definition  of,  §  71,  note  6. 

Presumption  as  to  ownership,  §  71-7. 

Evidence  of,  §  71-8. 

Of  land  not  of  oil,  §  121-4. 

While  making  discovery,  §  120-22;  §  154-8. 

Alone  is  necessary  for  patent,  §  206,  note  8. 

3M1AJO  H3OAJM 

POSSESSORY  ACTIONS:     See  Adverse  Suit. 
Adjudged  by  law  of  possession,  §  19. 
,Law  of  possession,  definition  of,  §  19,  note  1. 
Pleading,  §  19-3. 
May  include  action  to  restrain  trespass  and  waste,  §  19, 

note  3. 

Pleading  citizenship,  §  19-4. 
Pending  litigation  ineffective,  §  19-5. 
Prior  judgment  may  be  ineffective,  §  19-5. 
Appointment  of  receiver,  §  19-6. 

POSSESSORY  RIGHT,  definition  of,  §  19-2;  §  96,  note  23. 
Divestiture  of,  §  19,  note  2. 

POSTED  NOTICE  OF  LOCATION:    See  Location  Notice. 

PRIORITY:     See   Extra-Lateral  Rights;    Cross  Veins;    In- 
tersecting Veins ;  Subsurface. 
When  fraction  of  a  day  may  determine,  §  190,  note  20. 

PROCESS  OF  MILLING,  definition  of,  §101-3;  §116-4. 

PROCESS  OF  MINING,  definition  of,  §101-2;  §116-4. 

PROOF:    See  Evidence. 

PROSPECT,  definition  of,  §98,  note  1. 

PROSPECTING  AND  MINING,  definition  of,  §  101. 

PROTEST:    See  Contests;   Hearings;   Patent  Proceedings. 

PUBLIC  LAND,  definition  of,  §  104. 

Distinction  between  and  public  use,  §  104-2. 
Unoccupied  and  unappropriated,  §  104-3. 
Vacant,  §  104-4. 

Occupancy  and  improvements,  §  104-5. 
Mineral,  §  104-6. 


INDEX.  455 

(The  references  are  to  the  sections  and  their  subdivisions.) 
PUBLIC  LAND  SURVEYS:    See  Official  Survey. 

Distinction  between  and  official,  §  35. 

Made  under  direction  of  Surveyor-General,  §  35. 

Province  of  land  department  concerning,  §  35-2-3. 

What  questions  open  to  inquiry  by  court,  §  35-3. 

Duty  of  surveyor  as  to  character  of  land,  §  35-4. 

Basis  of  Surveyor-General's  return,  §  35-4. 

Division  and  numbering  of  the  public  lands,  §  35-5. 

Smallest  subdivision,  §  35,  note  6. 

Meander  lines,  §  35-6. 

Californian  provision,  §  35-8;  §  35,  note  12. 

PUBLIC  USE,  when  mining  a,  §  76-4. 

RAILROAD  LANDS.     Congressional  grants,  §  29. 

Classification  of,  §  29-2. 
Inconclusiveness  of  classification,  §  29-3. 
Subsequent  discovery  of  mineral,  §  29-4. 
Rejection  of  application  for  mineral  patent  of,  §  29  5. 
Land  department  concerning,  §  29-6. 

RECEIVER:     See  Courts;  Possessory  Actions. 
RECEIVER'S  RECEIPT:    See  Patent  Proceedings. 

RECLAMATION  PROJECTS.    Mineral  lands  within  subject 
to  location,  §  46,  note  9. 

RECORD  OF  LOCATION,  contents  of,  §  185-3. 
Time  and  place  for,  §  190. 
County  recorder,  §  190-2. 
District  recorder,  §  190-3. 
Failure  to  make,  §  190-4. 
Description  in,  §  190-5. 
What  need  not  show.  §  190-6. 
Question  of  fact,  §  190-7. 
As  notice,  §  190-8. 
Not  notice,  §  190-9. 
As  title,  §  190-10. 

Californian  provision,  §  190,  note  16. 
Effect  of  record,  §  190-11. 
As  evidence,  §  190-12. 

When  not  admissible  in  evidence,  §  190-12. 
Does  not  preclude  parol  evidence,  §  190-13. 
When  prima  facie  evidence,  §  190-14. 
Color  of  title,  §  190-15. 
Must  precede  official  survey,  §  211-9. 


456  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
RE-LOCATION:  See  Amended  Locations. 

Not  an  original  location,  §  179. 

How  made,  §  179. 

Void,  when,  §  179-2. 

Assumption  of  risk  in  making,  §  179-3. 

Cannot  be  effected  by  interference  with  annual  ex- 
penditure, §  179,  note  3. 

Statutory  bar  to,  §  179-4;  §  179,  note  7. 

Fraudulent,  §  179-5. 

Effect  of  entry,  §  179,  note  5. 

When  not  fraudulent,  §  179-6. 

Effect  of  statement  in  re-location  notice,  §  179-7. 

Improvements  in  making,  §  179-7. 

Of  overlap,  §  180-5. 

RE-LOCATION  NOTICE:  See  Re-location;  Amended  Loca- 
tions. 

Unnecessary  to  state  re-location  in,  §  188. 
Void,  when,  §  188-2. 

Effect  of  statement  of  re-location  in,  §  188-3. 
Proof  of  forfeiture  or  abandonment  unnecessary,  when, 
§  188-4. 

RE-LOCATOR  not  discoverer,  but  appropriator  of  discov- 
ery, §177-5. 

Proof  required  of,  §  177-6. 

Cannot  complain,  when,  §  197,  note  6. 

REMAND:    See  Courts. 

REMEDIAL  ACT:     See  Federal  Statutes. 

REMEDIES:  See  Condemnation  Proceedings;  Easements; 
Laches;  Liens;  Mechanics'  Liens;  Master  and 
Servant;  Partition;  Patents;  Rescission;  Statute 
of  Limitations;  Trespass. 

REPAYMENT:     See  Unused  Deposits. 
How  application  for  made,  §  93-7. 

RESCISSION:    See  Salting. 

Application  of  rule  as  to  mining  property,  §  82-3. 
How  effected,  §  83. 
Condition  precedent,  §  83-2. 
Grounds  for,  §  83-4. 
Insufficient  grounds  for,  §  83-8. 


INDEX.  457 

(The  references  are  to  the  sections  and  their  subdivisions.) 
RESUMPTION  OF  LABOR,  definition  of,  §  198. 

May  be  before  adverse  re-location  perfected,  §  198-2. 

Rights  same  as  before,  §  198-3. 

What  is  not,  §  198-4. 

Effect  of  temporary  suspension  of  labor,  §  198-5. 

RIGHT  OF  WAY:    See  Easements;   Water-Rights. 
Of  subsequent  locator  of  cross  lode,  §  182. 

ROCK  IN  PLACE,  definition  of,  §50-36-37. 
Term  liberally  construed,  §  50-37. 
Mineralized  stone  is,  §  125-2. 

ROYALTY:    See  Mining  Leases. 

SALE:    See  Discovery;  Mining  Partnerships;  Partition. 

SALINE  LANDS:   See  Salt  Claims;   Patent  Proceedings. 

SALT  CLAIMS,  what  may  be  located  as,  §  126. 
Character  of  deposit,  §  126-2. 
Limitation,  §  126-3. 

Nitrate  and  borate  lands  not  subject  to  "saline  act," 
§  126-4. 

SALT  LICK,  definition  of,  §  105. 

SALTING,  definition  of,  §  83-5. 
Unintentional,  §  83-6. 
Remedies  for,  §  83-7. 

SCRIP,  definition  of,  §  106-2. 
Selection  of  land,  §  106-3. 
Sale  of,  §  106-4. 
Guarantee,  §  106-5. 

Doctrine  of  bona  fide  purchaser  not  applicable,  §  106-5. 
Adverse  rights  may  be  acquired  by,  §  120-25. 

SECONDARY  OR  INCIDENTAL  VEIN,  definition  of,  §  50-26. 
Extra-lateral  right  to,  §  50-27. 

SEGREGATION  SURVEY:   See  Hearings. 
Definition  of,  §  37. 
Ordered  at  expense  of  party,  §  37-2. 
Non-mineral  claimant  must  establish  mineral  character 

of  land  in,  §  37-2. 
Appears  upon  records,  when,  §  37-3. 


458  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 
SHIFT  BOSS:   Definition  of,  §  101-7. 

SIDE  LINES,  court  cannot  enlarge  location  by  new,  §  110-3. 
Not    necessarily  equi-distant    from    discovery,  §173-2; 

§  177-27. 

Definition  of,  §  177-27. 
Irregularity  of,  §  177-28. 

SINGLE  VEIN,  definition  of,  §  50-28. 
Value  of,  §  50-28. 

SMELTING.    Reasonable  use  in  mill-sites,  §  116-8. 
Cutting  timber  for,  §  130,  note  4. 

SPECIAL  AGENTS  may  protest,  §  24. 

Reports  of  are  privileged  communications,  §  24,  note  2. 

SPECIFIC  PERFORMANCE.  Enforcement  of  between 
mineral  and  agricultural  claimants,  §  24-10. 

May  be  compelled  under  option,  §  66,  note  7. 

Enforced  between  adverse  mineral  claimants,  §  215, 
note  27. 

STATE  COURTS:   See  Courts. 

STATE  LANDS.     Congressional  grants,  §  28. 

When  title  passes,  §  28-2. 

When  closed  to  prospector,  §  28-3. 

Proof  of  mineral  value,  §  28-4. 

Discovery  subsequent  to  patent,  §  28-4. 

Land  department  concerning,  §  28-5. 

Californian  provisions  in  relation  to,  §  28-6-7-8-9-10. 

Effect  of  payment  for,  §  28-11. 

STATE  SURVEYS.    Prior  to  official  survey,  §  40. 
Record  of,  §  40-2. 
Record  prima  facie  evidence,  §  40-3. 

STATE  TAXATION:     See  Californian  Statutory  Law. 

STATUTE  OF  LIMITATIONS:  See  Limitation  of  Actions; 
Deeds;  Adverse  Possession;  Californian  Stat- 
utory Law. 

Object  of  Federal,  §  82,  note  2. 
Foundation  to  assert  right,  when,  §  84;  §  169-2. 
Establishes  right  to  patent,  §  84-2. 
Controlling  factor,  §  84-3. 


INDEX.  459 

(The  references  are  to  the  sections  and  their  subdivisions.) 

STATUTES:      See     Californian     Statutory    Law,     Federal 
Statutes. 

STATUTORY  LAW,  constituent  elements  of,  §  2. 
Subsidiary  invited,  §  2. 

State  must  not  be  in  conflict  with  paramount,  §  2. 
Is  not  uniform,  §  2-2. 
Salutary  provisions  in  subsidiary,  §  2-3. 
When  not  mandatory,  §  196-2. 
Effect  of  State  upon  patented  land,  §  208. 

STAY  OF   PROCEEDINGS:    See  Courts. 
STOCKHOLDERS,  co-tenants  not,   §59-5;    §223-9. 

When  consent  of  to  conveyance  necessary,  §  67-6. 

May  make  annual  expenditure,  §  199. 

May  not  "advertise  out,"  §  200-5. 

When  consent  of  to  conveyance  not  necessary,  §  223-10. 

STONE  CLAIMS:    See  Timber  and   Stone. 
In  general,  §  125. 
Character  of  location,  §  125-2. 

SUBSURFACE:     See  Surface. 

SUMMONS,  notice  of  intention  to  apply  for  a  patent  equiv- 
alent to,  §  214,  note  23. 

SUNDAY,  location  may  be  made  on,  §168-9. 
Adverse  claim  must  be  filed  before,  §  215-5. 

SUPERINTENDENT,  duties  of,  §  101-6. 

Personal  services  in  annual  expenditure,  §  194-3. 

SURFACE,  in  adverse  suit,  §20-2. 
Definition  of,  §  67-4. 
Obligation  to  protect,  §  67,  note  6. 
Rights  of  surface  and  subsurface  owners,  §  67,  note  6. 
Exclusive  right  to,  §  110-3. 
Distinction  between  of  patented  and  unpatented  claim, 

§  110,  note  3. 

Subsurface  rights,  §110-4;  §111. 
Right  to  follow  vein  below,  §  112. 
Basis  of  right  below,  §  112-2. 
Qualified  right  to,  §  119-2. 
Loss  of  right  to  control,  §  121-2. 

SURVEYOR-GENERAL:     See  Public  Land  Surveys;  Patent 
Proceedings. 


460  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

SURVEYS:  See  Public  Land  Surveys;  Official  Surveys; 
Segregation  Survey;  Adverse  Claim  Survey; 
State  Surveys;  Underground  Surveys. 

TAILINGS.     No  right  to  dump  on  public  land,  §  127. 

Public  land  covered  by  may  be  located  as  placer  claim, 

§  127. 
Deposition  must  not  injure  another,  §  127-2. 

TAXATION:     See  Californian  Statutes;    Federal  Statutes. 
Independent  estates  subject  to,  §67-12;    §122-7. 
Of  possessory  right,  §  96-9. 

TELEPHONE:     Affidavit  over,  is  void,  §  213,  note  7. 
TEST  WELL,  definition  of,  §  121-9. 
TESTIMONY:    See  Evidence. 
TEXAS,  independent  mining  law  within,  §  2. 

TIDE  LANDS,  definition  of,  §  146. 

Californian  provision,  §  146,  note  1. 
Not  subject  to  location,  §  146-2. 
Limited  possession  of  in  Alaska,  §  146-3. 

TIMBER  may  properly  be  an  incentive  to  location,  §  172-5. 

TIMBER  AND  STONE:    See  Stone  Claims. 
What  may  be  entered  as,  §  125-3;  §  129. 
Agricultural  entry,  §  125-4. 
Terms  of  sale,  §  125,  note  4. 
How  land  is  appraised,  §  125,  note  4. 
Errors  of  judgment  will  not  prevent  repayment,  §  125, 

note  4. 

Sale  by  entryman,  §  125-5. 
Corporation    not    bona    fide    purchaser,    when,    §  125, 

note  6. 
In,  forest  reserves,  §  131. 

TIMBER  CUTTING  in  mineral  districts,  §  130. 
Purpose  of,  §  130-2. 
In  Alaska,  §  130,  note  2. 
Miner  may  engage  in,  when,  §  130,  note  3. 
Right  to  exceptional,  §  130-4. 
Party  asserting  must  prove  right  to,  §  130-4. 
Forest  reserves,  §  131. 
Indian  lands,  §  132. 
Criminal  offense,  §  132-2. 


INDEX.  461 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Abandoned  military  reservations,  §  133. 
Damages,  measure  of  in,  §  134. 
Bona  fide  purchaser,  §  134-2. 

TIMBER  LANDS,  definition  of,  §  129;  §  129,  note  2. 
Mineral  character  of,  §  129-2. 
Improvements  and  occupation,  §  129,  note  2. 
Mineral  location  of,  §  129-3. 
In  California,  §  129,  note  3. 
Subsisting  location  on,  §  129-4. 
Patentee  of  may  be  trustee,  §  1294. 
Patentee  of'may  be  trustee  for  mineral  claimant,  §  129-4. 
Subsequent  discovery  of  mineral  in  lands  patented  as, 
§  129-5. 

TIME  CHECKS  in  California,  §101,  note  6. 

TITLE:    See  Co-tenants;  Deeds;  Abstracts  of  Title;  Market- 
able Title. 

Un patented  mining  claim  held  by  peculiar,  §  89,  note  3. 
When  character  of  immaterial,  §  95-4. 
Three  classes  of  created  by  law,  §  162,  note  1. 
When  possessory  vests,  §  168-2. 
Priority  gives  better,  when,  §  168-3. 
When  claim  of  will  not  control,  §  168-3. 
Fraudulent  placer,  §  170. 
Trespass  cannot  form  basis  of,  §  172-6. 
Location  notice  as,  §  190-10-11. 
Prima  facie  evidence  of,  §  190-13. 
Color  of,  §  190-15. 
Patent  as,  §  207;  §  207-2-3-4. 
When  receiver's  receipt  not  link  in  chain  of,  §  214-15. 

TOP  OR  APEX,  definition  of,  §  50-47-48. 
Legal  top  or  apex,  §  50-49'. 
Discovery  of,  §  50-50. 

Lode  location  must  include,  §  50-51 ;  §  110-2. 
Blanket  formation,  may  have  no,  §  50,  note  67. 
Swell  in  vein  not,  §  50,  note  72. 
What  is  a,  question  of  fact,  §  50,  note  74. 

TOWNSHIP    RECORDS,   when   mining   claim   appears   on, 
§  37-3. 

TOWNSITES,  what  subject  to  entry  as,  §  135.     ' 
Corporate  authorities,  §  135-2. 
County  judge,  §  135-3. 
Trust,  §  135-4. 


462  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Mineral  reservation,  §  135-5. 

Placer  claim  as,  §  135,  note  5. 

Valid  claim  and  possession,  definition  of,  §  135,  note  5. 

Insufficient  mineral  rights,  §  135-6. 

Adverse  suits  not  necessary..  §  136;  §  215,  note  11. 

TRESPASS:     See  Bona  Fide  Purchaser;  Injunctions. 
Injunction  granted  in  cases  of,  §  85. 
Ignorance  of  boundaries  no  excuse  for,  §  85-2. 
Right  of  inspection  incident  to,  §  85-6. 
Grounds  for  order  of  inspection,  §  85-7. 
Substance  of  order,  §  85-8. 
Damages,  §  85-9. 

Good  faith  of  trespasser,  §  85-10. 
When  insolvency  of  defendants  need  not  be  pleaded, 

§  85-11. 

Presumption  as  to  value,  §  85,  note  15. 
When  irreparable,  §  85,  note  19. 
Invasion  of  surface,  §  113. 
Subterranean  exploration,  §  113. 
What  is  not,  §  113-2;   §  181-4. 
Cannot  form  basis  of  title,  §  172-6. 
Waiver  of  right  to  object  to,  §  172-6. 
Upon  placer  claim,  §  181-4. 
Attempted  re-location  is,  when,  §  198-5. 

TRESPASSER:    See  Trespass. 

TRUSTEES:  See  Deeds;  Grub-stake  Contract;  Mining 
Partnerships;  Co-tenants;  Fraudulent  Patentee; 
Timber  Lands;  Agents;  Patents;  Patent  Pro- 
ceedings; State  Taxation. 

Government  as,  §  93-5. 

Directors  or  managers  of  corporations  are,  when,  §  223-7. 

Investment  of  legal  title  in,  §  223-9. 

Consent  of  stockholders  not  necessary  to  deed  of, 
§  223-10. 

TUNNEL  RIGHT,  definition  of,  §  107. 

Implied  rights,  §  107-2. 
TUNNEL-SITES,  sometimes  termed  a  mining  claim,  §  138. 

Double  purpose  of,  §  138;  §  138,  note  2. 

Assessment  work  on  counted  for  lode  claim,  §  138-3. 

Manner  of  location  matter  of  local  law,  §  138-4. 

Californian  provision,  §  138,  note  5. 

Location  of  blind  veins,  §  138-5. 


INDEX.  463 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Prior  location,  §  138-6. 
Adverse  location,  §  138-7. 
Line  of  tunnel  denned,  §  138-8. 
No  annual  expenditure  required,  §  138-9. 
Abandonment,  §  138-10. 
Not  subject  of  patent,  §  138-11. 
May  be  subject  of  adverse  claim,  §  138-11. 
Money  expended  on,  how   counted  in  patent  proceed- 
ings, §  138-11. 
Dump,  no  provision  for,  §  139. 

UNDERGROUND  SURVEY,  court  may  order  when,  §  40-4. 
Californian  provision,  §  40,  note  4. 
Service  of  order  for,  §  40-5. 

UNION  OF  REMEDIES:    See  Courts. 

UNNAVIGABLE  RIVER:    See  Water-rights. 
Bed  of  subject  to  mineral  location,  §  124. 
How  location  in  may  be  made,  §  124-2. 
Is  part  of  public  lands,  §  141,  note  6. 

UNUSED  DEPOSITS:     See  Re-payment. 

Return  of,  §  212,  note  4. 
UPLANDS,  rights  of  owner  of,  §  35,  note  12. 

Leasehold  interest  in,  §  124a. 

VALID  MINING  CLAIM  OR  POSSESSION,  definition  of, 
§  135,  note  5. 

VEIN,  LODE  AND  LEDGE:  See  Blanket  Vein,  Blind  Vein, 
Broad  Lode,  Contact  Vein,  Cross  Veins,  Extra- 
lateral  Right,  Intersecting  Veins,  Known  Vein, 
Ledge  Matter,  Rock  in  Place,  Secondary  Vein, 
Single  Vein,  Vein  or  Lode  in  Place,  Walls  of 
Vein,  Lode  and  Ledge. 

No  definition  of  in  mining  act,  §  50. 

Interchangeable  terms,  §  50-2. 

Miners'  use  of  terms,  §  50-2-3. 

Common  use,  §  50-4. 

What  is  to  miner,  §  50-5. 

When  question  of  arises,  §  50,  note  5. 

Definitions  given  usually  restricted  to  character  and 
place,  §  50,  note  5;  §  50-11. 

Miners'  distinction  between,  §  50-6. 

Vein  within  lode,  §  50-7. 

Synonymous  terms,  §  50-8. 


464  INDEX. 

(The  references  are  to  the  sections  and  their  subdivisions.) 

Meaning  of  in  mining  act,  §  50-9. 

Not  an  imaginary  line,  §  50,  note  9. 

Not  always  straight  line  of  uniform  dip,  thickness  nor 

richness,  §  50,  note  9. 
Various  definitions  given,  §  50-10. 
Characteristics  in  different  districts,  §  50,  note  10. 
No  arbitrary  definition  possible,  §  50-14. 
Approved  definition,  §  50-15. 

Crevice  is  a  term  sometimes  applied  to,  §  50,  note  15. 
Gravel  deposits,  §  50-16. 
Characteristics  of,  §  50-17. 
Elements  of,  §  50-18. 

May  not  appear  upon  surface,  §  50-24 ;  §  50,  note  67. 
Presumption  as  to  existence  of,  §  110-5. 
Presumption  as  to  extent  of,  §  110,  note  6. 
Departure  from  surface  lines,  §  110-6. 

VEIN  OR  LODE  IN  PLACE.    When  in  place,  §  50-39. 
When  not  in  place,  §  50-40. 

Extra-lateral  right  does  not  attach  when  not  in  place, 
§  111-3. 

VOID   LOCATIONS,  when  no  act  can  confer  validity  on, 

§  172-2. 

Effect  of  want  of  proper  boundaries,  §  172-3. 
Illustrations  of,  §  172-4-6. 

VOIDABLE  LOCATIONS:    See  Citizens  and  Aliens. 
By.  alien  is,  §163-2;  §171. 

WAIVER,  of  exemption  for  contribution  between  co-tenants, 

§  59-14. 

In  annual  expenditure,  §  200-2. 
Of  protest,  illegal,  when,  §  214-19. 
Of  adverse  claim,  §  215-8. 
Evidence  of,  §  215-8;  §  216,  note  6. 

WALLS  OF  VEIN,  LODE  AND  LEDGE,  definition  of,  §  50- 

59. 

Barren  or  mineralized,  §  50-59. 
Hanging  and  foot,  §  50-59. 
May  be  of  similar  character,  §  50-59. 
Importance  of,  §  50-60. 
Both  not  essential,  §  50-60. 
Existence  may  be  determined  by  analysis  and  assay, 

§  50-60. 
What  indications  of  permanency  and  continuity,  §  50-60. 


INDEX.  466 

(The  references  are  to  the  sections  and  their  subdivisions.) 
WASHINGTON,  placer  locations  in,  §  177-17. 

WATCHMAN  cannot  re-locate,  when,  §  179-5. 

Personal  services  of  in  annual  expenditure,  §  194-3.   • 

WATER-RIGHTS:    See  Easements;   Tide  Lands. 
Are  real  property,  §  141. 
What  may  be  appropriated,  §  141-2. 
Volume  and  extent,  §  141-3. 
Public  grants,  §  141-4. 
Conveyances  or  agreements  in  relation  to  must  be  in 

writing,  §  141-5. 
Rights  of  way,  §  142. 
Appropriation  of,  §  143. 
Californian  provision,  §  143,  note  1. 
Different  systems,  §  143-2. 
Compliance  with  local  statutes,  §  143-3. 
No  constructive  appropriation  of,  §  143-4. 
Measure  of  right,  §  143-5. 
Actual  user  for  beneficial  purpose,  §  143-5. 
Non-user,  §  143-6. 
Adverse  user,  §  143-7. 
Interruption  of  right,  §  143-8. 
Prescriptive  right,  §  143-9. 
Diversion,  §  144. 
Adjacent  water,  §  144-2. 
Pollution  of  water,  §  144-3. 
Nuisance,  §  145. 

WITHDRAWAL. 

Of  state  lands,  §  36-8. 
Of  oil  lands,  §  120. 

WRIT  OF  REVIEW:     See  Certiorari. 
WRITS  OF  ERROR:    See  Courts. 

YARD  DECISION,  effect  of,  §  120-17. 

Effect  of  remedial  act  upon,  §  120-19a. 

ZONE:    See  Broad  Lode. 

Metal  equivalent  to  mineral,  §  99-10. 


10  TlflW 

10  ermw 


TABLE  OF  CASES  CITED 


TABLE   OF   CASES   CITED 


(The  references  are  to  the  sections.) 


A.  C.  M.  Co.  v.  Court,  180,  206. 

Acme  Co.,  46. 

Acme  Oil   Co.  v.  Williams,   121 

122. 

Adams  v.  Crawford,  163,   168. 
Ah  Yew  v.  Choate,   45. 
Ajax  Co.  v.  Hilkey,  50,  110. 
Alaska     C.    Co.,    116,    146,    168, 

211. 
Alaska    Co.    v.    Barbridge,    46, 

116,   121,    145. 
Alaska  Placer,   211. 
Albert  R.  Pfau,  Jr.,  93,  125. 
Aldebaran  Co.,   194,  211. 
Alderson  v.  Crocker,    101. 
Alexander  v.   Sherman,   179. 
Alford  v.   Barnum,    26,    45,    104, 

168. 

Alfred   Baltzell,    165. 
Alice   Lode,    36,    180. 
Alice  Placer,  211,  216. 
Allen  v.  Blanche,  215. 

v.  Dunlap,  85,  149. 

Allen  H.  Cox,   46. 

Allyn  v.  Schultz,  20,  163. 

Alsop  v.  Riker,  207. 

Alta  Mill  Site,  214. 

Altoona  Co.  v.  Integral  Co.,  20, 

84,   169,   194,   206. 
Amador  Co.  v.  Gilbert,  135. 
Amador     Median     Co.     v.      So. 

Spring  Hill  Co.,   93,   110,   111, 

206. 
Amador   Queen   Co.  v.   DeWitt, 

77. 

Amanda  Hines,  35. 
Ambergris  Co.  v.   Day,   50,   154, 

155,   157. 
American  Co.  23,  24,  45,  154. 

v.   Colo.,   223. 

Anaconda  Co.  v.  Butte  &  Bos- 
ton Co.,  57,  58. 
— —  v.  Heinze,   112. 
Anchor  Co.  v.  Howe,  23,  38,  215. 
Anderson  v.  Caughey,  1,  2,  193, 

195,   199. 

• v.  Phegley,  66. 

Anthony  v.  Jillson,  20,  185. 
Anvil  Co.  v.  Code,  88,  194. 
Apple     Blossom     Co.     v.     Cora 

Lee,   20. 
Argentine   Co.   v.   Terrible   Co., 

Ill,   177. 


Argillite   Co.,    35,    46,    121,    124, 

146. 
Argonaut   Co.   v.   Kennedy   Co., 

11,  111,  177. 
Armstrong  v.   Lower,    110,    179. 

v.  Maryland  Co.,  103. 

Arnold,   47. 

v.  Goldfield  Co.,  95. 

Aspen  Co.  v.  Rucker,  81. 

v.  Williams,  26,  157. 

Athens  Co.  v.   Carnduff,   80. 
Atty.-Gen.   v.   Hudson   Co.,   121. 

v.  Tomline,   47. 

Attwood  v.  Fricot,  71. 

Aurora  Hill  Co.  v.   85  Mg.   Co., 

206,    207,    214. 
Aurora    Lode    v.     Bulger     Hill 

Co.,   211. 
Aye  v.  Philadelphia  Co.,  122. 

Back   v.    Sierra   Nev.    Co.,    138, 

215. 
Backer   v.    Penn    Lub.    Co.,    85, 

121,    122. 

Bacon  v.  Federal  Co.,  85. 
Badger  Co.  v.  Stockton  Co.,  71, 

72,   200. 

Bagnell  v.   Broderick,   207. 
Baker    v.    Butte    City    Co.,    155, 

186. 

v.  Clark,  62. 

Bakersfield    Co.     v.    Kern    Co., 

96. 
Bakersfield  Fuel  &  Oil  Co.,  120, 

158. 

Baldwin  Co.  v.  Quinn,  23. 
Ball  v.  Kehl,  141. 

v.  Tolman,  46,  102. 

Ballard  v.  Golob,  200. 
Ballinger  v.  Frost,  46. 
Bardert  v.  N.  P.  R.  Co.,  24,  35, 

98,   104,  108,  207. 
Barklage  v.   Russel,   206. 
Barnard  v.  McKenzie,  79. 
Barnes  v.   Bee,   122. 
Bash   v.   Cascade   Co.,    212,    214. 
Basin  Co.  v.  White,   72,   212. 
Baxter  v.  Patterson,  150. 
Bay   v.    Oklahoma    Co.,    26,    46, 

104,    120,    157,    158,    168. 
Bay  State  Co.  v.  Brown,  20,  89. 
Beals   v.    Cone,    15,    20,    50,    154, 

177,   197,  214. 
Bealy  v.  Napthaly,   207. 


470 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Bear  Lake  Co.  v.  Garland,  141. 
Beaudette  v.  N.  P.  R.  Co.,  29. 
Becker  v.  Push,  20,  156. 
BeJirends  v.  Goldstein,  46,  215. 
Belk  v.  Meagher,  19,  71,  96, 
177,  178,  179,  180,  198. 

v.  Nickerson,   110. 

Bell  v.  Bed  Rock  Co.,  72. 
Belligerent  Claims,  177. 
Benjamin  v.  S.  &  C.  P.  R.  Cos., 

29,  35,  214. 

Bennett  v.  Harkrader,   20,   151, 
185. 

v.  Red  Cloud  Co.,  67. 

Benson  Co.  v.  Alta  Co.,  85,  193, 

214. 

Bently  v.  Brossard,  58. 
Berentz    v.     Belmont     Oil     Co., 

102. 
Bergquist  v.  W.  Va.  Co.,  67,  72, 

179,   180,   189. 

Bernard  v.  Parmelee,  10,  20. 
Berry  v.  Wood~burn,   57. 
Bettman  v.  Harness,  85,   122. 
Bevis   v.   Markland,    157. 
Bewick  v.  Muir,   102. 
Big  Horn  R.  Co.,  77. 
Big  3  Co.  v.  Hamilton,  73,  194, 

195,  196.    ' 

Big  6  Co.  v.  Mitchell,  85. 
Biglow  v.  Conradt,  120,  178,  180. 
Billings  v.  Aspen  Co.,  163. 
Bingham    Co.    v.    Ute    Co.,     72, 

158,   177,   180,   197,   214. 
Bishop   v.   Baisley,    72,    73,    101, 

119,   190,   193,   194,   195. 

v.  Gibbons,    207. 

—  V.Thompson,   83. 
Bismark    Co.    v.    No.    Sunbeam 

Co.,   151,   185,   187,   196. 
Bissel  v.  Foss,  58. 
Black    v.    Elkhorn    Co.,    72,    96, 

162,   206. 
Blackburn  v.  Portland  Co.,   10, 

11. 

Blackmore  v.  Reilly,  135,  185. 
Blake  Placer,  47. 

-v.  Butte  Co.,   111. 

v.  Doherty,    36. 

v.  Thome,   67,   157. 

Blue  Bird  Co.  v.  Largey,  50. 
Board  v.  Mansfield,  68. 
Boeme  v.  Fitzgerald,   58. 
Bonanza    Co.    v.    Golden    Head 

Co.,   185. 
Bond  v.  Cal.,   28. 

v.  IT.  S.,  46. 

Bonesell  v.  McNider,  215. 
Bonner    v.    Meikle,    28,    50,    68, 

104,  135,  157,  215. 


Bonner  v.   Rio   Grande  Co.,    46. 
Book   v.    Justice   Co.,    2,    45,   50, 

73,    97,    1)9,    154,    155,    157,    163, 

164,    168,    177,    185,     186,    194, 

196,    199. 

Boske  v.  Comingore,  23. 
Boskowitz  v.  Davis,   59. 
Botsford  v.  Van  Riper,   57,  66. 
Bowen  v.  Aubrey,  79. 
Boyle  v.   Mt.   Key  Co.,   79. 
Bradford    v.    Morrison,    79,    93. 

96. 

Brady  v.  Husby,   151,  190. 
Brady's    Mortgagee    v.    Harris, 

67,    135. 

Bramlett  v.  Frick,   185,.  18-9. 
Brandon  v.  Ard,   207. 
Bree  v.  Wheeler,   141. 
Breece   Co.,    Ill,    155,    168. 
Bretell   v.    Swift,   214. 
Brewster  v.  Lanyon  Co.,  121. 

v.    Shoemaker,    50,154,168. 

Brick  Pomeroy,   116. 
Brickell  v.  Atlas  Co.,  66. 
Brien  v.  Moffitt,   20. 
Bright  v.   Elkhorn  Co.,   214 
Brockbank   v.   Albion   Co.,    154, 

168,    177. 
Brookshire  Co.  v.  Casmalia  Co., 

121,  122. 
Brophy    v.    O'Hare,    26,    45,    68, 

135,   154,   157. 
Brown  v.   Bond,   215. 

v.  Bowman,  57 

v.  Challis,  81. 

v.  Gurney,   20,  72,   155,   168, 

179,    180,   193,    214. 

v.  Levan,   151. 

v.  N.  P.  R.   Co.,   108. 

V.Oregon    King    Co.,     168, 

178. 

—  v.  S.  F.  Sav.  Union,  66. 

v.  Spilman,  121. 

v.  Yarrahan  Co.,  35,  177. 

Broughton   v.   Exchange  Bank, 

1 5. 

BrownHeld  v.  Bier,  119. 
Brunswick  v.  Winters,  58. 
Bryan  v.  McCaig,   194. 
Buena  Vista  Co.  v.  Tulare  Co., 

28. 

Buffalo   Co.,   47. 
Buffalo  Zinc  Co.  v.   Crump    47 

71,    72,    169,    190.    , 
Bullion     Beck    Co.     v.     Eureka 

Hill  Co.,  50,  85,  98. 
Bullion  Co.   v.   Croesus   Co.,   50. 
Bunker     Hill     Co.     v.     Empire 

State  Co.,  20,  50,  177,  178,  180, 

187,  214. 


TABLE   OF  CASES   CITED. 


471 


(The  references  are  to  the  sections.) 


Bunker  Hill  Co.  v.  Kettleson,  80 

—  v.  Last  Chance  Co.,  180. 
—  v.  Shoshone     Co.,     68,     155, 

172,   211. 

v.  U.  S.,   129. 

Burfenning  v.   Chicago   R.   Co., 

23,    45,   68,   207. 
Burke    v.    McDonald,     50,     155, 

157,    173. 

Burley  v.  U.  S.,  76. 
Burns  v.  Clark,  116. 

v.    Schoenfield,    99. 

v.   White   Swan   Co.,    79. 

Butler    v.    Goodenough    Co.,    1, 

190. 
Butte    &    Boston    Co.    v.    Mont. 

Co.,   59,  85. 

— v.   Societe,    112. 

Butte   City  Co.   v.   Baker,    1,    2, 

156,   177,   185,   186. 
Butte  City  Smoke  House  Lode 

Cases,  206. 
Butte   Con.    Co.   v.   Barker,    20, 

178. 
Butte  H.   Co.   v.   Frank,    68,   79, 

206,    215. 
Butte  N.  C.  Co.  v.  Radmilovich, 

186. 

Buttz  v.  N.  P.  R.  Co.,  46. 
Byrne  v.  Knight,  57. 
Byrnes  v.  Douglas,  76. 
Byrnes  Estate,  98,  102. 

Cadierque  v.  Duran,   28. 
Cagle  v.  Dunham,  23,  24. 
Cain   v.   Addenda  Co.,   197,   215. 
Caley  v.  Portland  Co.,  61. 
Calhoun    Co.    v.    Ajax    Co.,    50, 

68,  77,  110,   138,   157,  168,  182. 
Callahan   v.    James,    68,    73,    98, 

135,   197. 

Cameron  v.  Hodges,  10. 
Campbell  v.  Rankin,  1,  43,  190. 
Cape  May  Co.  v.  Wallace,   211, 

215. 

Capital  No.  5  Claim,  19,  84,  214. 
Caples  v.  Steel,   83. 
Capricorn  Placer,  214. 
Capron   v.   Strout,   79. 
Cardelli  v.  Comstock,  141. 
Caribou  Lode.   190. 
Carney  v.  Arizona  Co.,  193. 
Carr  v.  U.  S.,  28. 
Carrie  S.  Co.,  20,  214. 
Carson  v.  Hayes,   127. 
Carson  City  Co.  v.  N.  Star  Co., 

168,    177. 
Carter  v.  Bacigalupi,  67,  185. 

v.  Thompson,   82,  207. 

Carterville   Co.   v.   Abbott,    80. 


Gary  Co.  v.  McCarty,   62,  79. 
Cascaden    v.    Barto'lis,    50     154 
157. 

-  v.  Dunbar,   57,   68 

-  v.  Wimbish,  79. 
Casey  v.  Vassor,  27 
Cash  Lode,   163. 
Castegnetto   v.  Coppertown  Co., 

9  6. 

Catlin  Coal  Co.  v.  Lloyd,  67. 
Catron  v.  So.  Butte  Co.,  67.' 
Cedar  Canyon  Co.  v.  Yarwood 

59,    154. 

Centerville  Co.,   130. 
Cent..  Coal  Co.  v.  Penny,  85. 
Cent.    Eureka    Co.    v.    E.    Cent. 

Eureka  Co.,  67. 
C.  F.  Conrad,  47. 
Chambers  v.  Harrington,  194. 

v.  Lowry,  61. 

Champion  Co.  v.  Con.  Wyo.  Co., 

20,   50. 

Chapin  v.   Fye,   10. 
Chapman  v.  Pollock,  35. 

v.   Toy  Long,    206. 

Charlton  v.  Kelly,  157,  168,  177. 
Chas.  Lennig,  116,  172. 
Chas.  A.  Barnes,  47. 
Chas.  F.  Whitehead,   24. 
Chas.   S.  Morrison,   93,   108. 
Chas.  W.  Steele,  214. 
Chase  v.  Savage,  59. 
Cheesman   v.    Hart,    177,    190. 
v.   Shreve,   50,   87,   112,   156, 

157,    178,   190. 
Chesley  v.  King,  121. 
Chicago   Placer,   36. 
Childers  v.   Neely,    19,   121. 
Chism  v.  Price,   104. 
Chormicle  v.  Hiller,  129. 
Chrisman   v.   Miller,    26,    45,    50, 

71,    104,   154,    157,    158,    177. 
Chung  Kee  v.  Davidson,  58. 
Church  v.  Smithea,   79. 
Cisna  v.  Mallory,   57. 
Clark  v.  American  Co.,  66,  197. 
Clark  v.  Barnard,   71. 

•  v.  Nash,  76. 

v.  Rosario  Co.,   12. 

-v.  Wall,   62. 

Clark,  Prentiss  &  Clark,  24. 

Clark's  Mine,  214. 

Clary  v.  Hazlett,   45. 

Cleary    v.    Skiffich,    1,    84,    116, 

169,    180,    206,   215. 
Clemmons  v.  Gillette,   28. 
Cleveland  v.  Eureka  No.  1,  214. 
Clipper  Co.,   20. 

v.   Eli.  Co.,   68,   96,  99,  119, 

181,    206,    214,    215,    216. 


472 


TABLE   OF   CASES   CITED. 


(The  references  are  to  the  sections.) 


C.    L.   S.    R.    Co.    v.   San   Garde, 

149. 

Clyde  v.  Cummings,  23. 
Cochran  v.   O'Keefe,   67. 
Cole  v.  Markley,  35. 
Coleman  v.  Curtis,  73,  195,  196. 

v.  Homestake  Co.,  59. 

v.  McKenzie,   24,   197,   206. 

Colgan   v.   Forest  Co.,   122. 
Collins  v.  McKay,   67. 
Colomokas  Co.,  46. 
Colo.   Cent.    Co.   v.    Turck,    111, 

206. 
Colo.   Coal   Co.   v.   U.   S.,   50,   82, 

206. 
Columbia    Co.    v.   Duchess    Co., 

154,  .157,   190. 

v.  Hampton,  41,  146. 

Com'r.  to  Sec'y.  Noble,  47. 

Conaghy  v.  Doyle,  181. 

Conde  v.  Sweeney,   94,  95. 

Condon    v.    Mammoth    Co.,    214. 

Congdon  v.  Olds,  58. 

Conn  v.  Oberto,  72,  104. 

Con.    Channel    Co.    v.    C.    P,    R. 

Co.,  76. 

Con.  Coal  Co.  v.  Baker,  67,  122. 
Con.  Divide  Co.  v.  Bliley,  58. 
Con.   G.   &   S.   Co.   v.    Struthers, 

214. 
Con.  Wyo.  Co.  v.  Champion  Co., 

12,  36,  50,  173,  207. 
Contreras  v.  Merck,   19,   20,  72, 

197. 

Conway  v.  Hart,  177. 
Cook  v.  Klonas,  170. 
Coolbaugh  v.   Lehigh   Co.,    62. 
Copper    Belle    Co.    v.    Costello, 

194. 

Copper  Bullion  Claims,  211. 
Copper  Co.   v.   Butte  &  Corbin 

Co.,  73,   194. 
Copper  Globe  Co.  v.  Allman,  2, 

154. 
Copper  River  Co.  v.  McClellan, 

57. 

Corning  v.  Pell,  138. 
Corrine  Co.  v.  Johnson,  207. 
Coryell  v.  Cain,  71. 
Cosmopolitan  Co.  v.  Foote,   50, 

110,   177. 
Cosmos  Co.  v.  Gray  Eagle  Co., 

10,    19,    23,    71,   104,   214. 
Costello  v.  Muheim,   71. 

v.  Scott,   57. 

Cowell  v.   Lammers,   45,   71,   72, 

129.   172,   206. 

C.  P.  R.  Co.  v.  DeRego,  29. 
Cragie  v.  Roberts,  23,  82. 
Cragin  v.  Powell,   23,  35. 


Craig  v.   Leitendorfer,   82. 

—  v.  Thompson,  149. 
Crane  v.  Wirisor,   144. 
Cranes   Gulch   Co.   v.    Scherrer, 

68,  119. 

Crary   v.    Dye,    72,   200. 
Credo  Co.  v.  Highland  Co.,  149, 

150. 
Creede  Co.  v.  Uinta  Co.,  20,   68, 

138,  154,  157,  215. 
Crehore  v.   O.    &  M.   R.   Co.,   10. 
Crescent     Co.     v.     Silver    King- 
Co.,   141. 
Cripple   Creek  Co.  v.   Mt.   Rosa 

Co.,   215. 

Crocker  v.  Manley,  50,  S3. 
Cronin  v.  Bear  Creek  Co.,  20. 
Crosby  Claims,   23,   213,   214. 
Cross  v.  Kitts,  141. 
Grossman  v.  Pendery,  71. 
Crown   Point  Co.  v.  Buck,    110, 

180,   214. 

'V.  Crismon,   197. 

Cullins  v.  Flagstaff  Co.,  79. 
Cunningham     v.     Pirrung,     73, 

188. 

Cutting  v.  Reininhaus,   157. 
Cyprus  Mill-site,   116. 
Czarecki  v.   Seattle   Co.,   80. 

Daggett   v.    Yreka    Co.,    36,    50, 

110,    149,    162,    177,    185,    186, 

190,  206. 

Dahl  v.  Raunheim,  163. 
Dall  v.  Confidence  Co.,  81. 
Dana    v.    Jackson    St.    Wharf, 

121. 

Danaldson  v.  Orchard  Co.,  194. 
Dan.  Cameron,  214. 
Danielwitz  v.  Temple,  28. 
Darger  v.  LeSieur,   185,  190. 
Daughetee  v.  Ohio  Oil  Co.,  122. 
Davidson  v.  Bordeaux,   154,  157, 

185,    196. 

v.  Eliza  Co.,  214. 

v.  Fraser,  20,  59. 

Davis  v.  Alford,   79. 

v.Dennis,  72,   163,   168 

v.  Gale,   141,   144. 

v.  McDonald,   20. 

v.  Shepherd,   71,   173. 

v.  Weibbold,   26,   28,   45,   98, 

135,    157,    206,    207. 
Dayton  v.  Seawell,  76. 
Decker  v.  Howell,   58. 
Deeney  v.   Min.    Creek   Co.,    20 

151,  185,  190,  214. 
Deffeback    v.     Hawke,     28,     45, 

68,  104,  206,  212,  214,  216. 
De  Lamars  Co.  v.  Nesbitt,  10. 
De  Long  v.  Hine,  213. 


TABLE   OF  CASES  CITED. 


473 


(The  references  are  to  the  sections.) 


Del   Monte   Co.   v.   Last  Chance 

Co.,   36,   96,   110,   111,   112,   113, 

155,    168,    172,    177,    179,    180, 

182. 

Dellapiazza  v.   Foley,   58. 
Delmoe  v.  Long,  82,  200. 
Delmonico  v.  Roudebush,   57. 
Deniss  v.  Sinnott,  20. 
Deno  v.  Griffin,  207,  214. 
Derry  v.  Ross,  72. 
Deserant  v.  Cerillos  Co.,  80. 
Dickey  v.   Coffeyville   Co.,    122. 

v.   Maddux,    141. 

Dillon  v.  Bayliss,  151. 
Discovery  Placer  Claim  v.  Mur- 

ry,   215. 
Doe  v.  Sanger,  168,  177,  207. 

v.  Tyler,   180. 

V.Waterloo   Co.,    1,    10,    50, 

67,   68,   158,   163,  164,   177,  186, 

206. 
Doherty  v.  Morris,   20,    59,   179, 

194. 

Dolles  v.  Hamberg  Co.,  199. 
Dolly  Varden,   168. 
Donahue  v.  Meister,   186. 
Donohoe  v.  Trinity  Co.,  79. 
Donovan  v.  Hanauer,  67. 

v.  St.  Louis  Co.,  85. 

Doolan  v.  Carr,  82,  206. 
Doon  v.  Tesh,  20. 
Dorsey  v.  Newcomer,  57. 
Dotson  v.  Arnold,   214. 
Dougherty  v.   Cleary,   58. 

v.   Haggin,    100. 

Dower  v.   Richards,    68,   72,   98, 

135. 
Downing  v.  More,  76. 

v.  Rademacher,  59,  85. 

Doyle  v.  Austin,  96. 
Drake  v.  Gilpin.  67. 
Draper   v.   Wells,    212,    215. 
Dreyfus  v.  Badger,  82,  207. 
Drummond    v.    Long,    149,    150,  ' 

151. 

Du  Prat  v.  James,  73,  194,  198. 
Duckworth  v.  Watsonville  Co., 

141,   143. 

Duffield  v.  Russell,  121. 
Duggan    v.    Davey,    19,    47,    50, 

207. 

Dughi  v.  Harkins,   26,   157. 
Duncan  v.  Archambault,  125. 
v.   Eagle  Rock  Co.,   20,   36, 

149,  151,  163,  177,  194,  212. 
•  v.  Fulton,   16,  178. 


Dunlap   v.   Pattison,   164. 
Durant  v.  Corbin,  164,  170. 
Durant  Co.  v.  Percy  Co.,  85. 
Durgan  v.  Redding,  12,  20,  215. 


Duryea  v.  Boucher,  185. 

v.  Burt,  58. 

Dutch  Flat  Co.  v.  Mooney,  177. 
Duxie  Lode.  158. 
Dwinnell  v.  Dyer,  154,  177,  185. 
Dye  v.   Crary,    199. 

E.  Jersey  Co.  v.  Wright,  62. 
East.  Or.  Co.  v.  Willow  R.  Co., 

206. 

Eaton   v.   Norris,    156,    168,   177. 
Edinger  v.  So.  Oil  Co.,  58 
E.   F.  Filer,   108. 
Eilers    v.     Boatman,     151,     177, 

185,   186,   190. 
E.  J,  Ritter,  214,  215. 
Elda  Co.  v.  Mayflower  Co.,  211, 

215. 
Elder     v.     Horseshoe     Co.,     59, 

200. 

v.  Wood,  96. 

Electric  Mg.  Co.  v.  Van  Auken, 

156. 
Elliott  v.   S.   P.   R.   Co.,   47     126 

214. 

Elmer   F.   Cassel,   194,   195,    212. 
El  Paso  Brick  Co.,  213,  214. 
Ely  v.  Ferguson,  141. 
E.    M.    Palmer,    47,    68,    96,    99, 

115,    119,    125,   172. 
Emblen  Co.,   82. 
v.    Lincoln    Land    Co.      23 

82. 
Emerson  v.  Bergin,  62. 

v.  McWhirter,  1,  73. 

Emma  Lode,  39. 

Empire  Co.  v.  Bonanza  Co.,  85 

v.  Tombstone  Co.,  50. 

Empire    State    Co.    v.    Bunker 

Hill  Co.,  81,  177,  180,  214. 
English  v.  Johnson,   1,  71. 
Enterprise    Co.    v.    Rico-Aspen 

Co.,   138,  154. 
Erhardt    v.    Boaro,    1,    85,    154, 

156,    186. 

Erwin  v.  Perego,  168,  177. 
Escott    v.    Crescent    City    Co., 

98,  102. 

Etling  v.  Potter,  26. 
Eubanks  v.  Petree,  57. 
Eugene  McCarthy,   206. 
Eureka    Co.    v.    Richmond    Co., 

50,   177,  207. 
Eureka  Office,   168. 
Evalina    Co.    v.    Yosemite     Co., 

194,  200. 
Ex  parte  Boyce,  80. 

Kair,   80. 

Martin,    80. 

Extra  Lode  Claim,  211. 


474 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


F.  A.  Hyde  &  Co.,   28. 
Fairplay  Co.  v.  Weston,   141. 
Fargo  Group  No.  2,  212. 
Farmington    Co.    v.    Rhymney 

Co.,-    150,    151,    173,    185,    186, 

190. 
Farrell  v.  Lockhart,  20,  72,  179, 

180. 

Faubel   v.   McFarland,    59,    200. 
Faxon  v.  Barnard,  151. 
Featherman   v.   Hennessy,    143. 
Fee  v.  Durham,   198. 
Feliz  v.  Feliz,  59. 
Ferguson  v.  Belvoir,  197. 

v.Hanson,  90. 

'V.  McGuire,   66. 

v.Neville,  163. 

Ferrell'  v.  Hoge,   26,   154,   157. 

Ferris  v.  Baker,  58. 

Ferry  v.  Street,  28. 

Fidelity  Co.  v.  Shenandoah  Co., 

79, 

Field  v.  Tanner,  197. 
Finch  v.  Ogden,  35. 
Fissure    Co.    v.    Old    Susan   Co., 

138,  194. 
Fitzpatrick  v.   Montgomery, 

127. 

Flagstaff  Co.  v.  Collins,  79. 
v.  Tarbet,   50,   68,   110,   111, 

112,   173,  177. 
Flaherty  v.  Gwinn,  1. 
Flavin  v.  Mattingly,  149. 
Fleming   Co.   v.    So.    Penn.   Co., 

121. 

Flint  v.  Stone  Co.,  220. 
Florence  Co.  v.  Orman,  122. 
Florida  Cent.  Co.  v.  Bell,   10. 
Flynn    Group    Co.    v.    Murphy, 

173. 

Foolkiller  Lode,   211. 
Foote  v.  Nat.  Co.,  50,  155. 
Forbes  v.  Gracey,  19,  77,  79,  96, 

99,   102. 
Ford  v.  Campbell,  185,  190. 

v.  Milk  Ass'n,  66. 

Forestier  v.  Johnson,  28. 
Forsythe  v.  Weingart,   47,   125. 
.Fort  Cameron  Reserve,  133. 
Foss  v.  Johnstone,  16,  35. 
420    Co.   v.    Bullion    Co.,    81,    84, 

169. 
Fox    v.    Hale    &   Norcross    Co., 

87,  88,  101. 
v.  Myers,  50,   154,  155,   157, 

186.   190. 

Francoeur  v.  Newhouse,  46,  68. 
Frank     v.     Stratford-Hancock, 

66. 

Frank  A.  Maxwell,   165. 
Frank   G.   Bell,   93,   125. 


Franklin  Co.  v.  O'Brien,   59. 
Fred.  A.  Williams,  24,  211. 
Fredericks  v.  Klauser,   193,  194, 

198. 

Freeman  v.  Bellegarde,  124. 
Frees  v.   State,   50. 
Freezer  v.  Sweeney,  47,  186. 
Frellsen  &  Co.   v.  Crandell,   28, 

207. 
Frisholm  v.  Fitzgerald,   178. 

F.  T.  Palmer,  47. 
Fulkerson  v.  Chisna  Co.,  19. 
Fuller  v.  Harris,  43,  151,  164. 
Funk  v.  Sterrett,  168. 

G.  A.  Khern,  211. 
Gage  v.  Gunther,  23. 
Gaines  v.  Chew,  66. 
Galbraith    v.    Shasta    Co.,    163, 

168,   207. 
Gallagher    v.     Gray,     125,     129, 

130. 

Galliher  v.   Cadwell,   78. 
Gamer  v.  Glenn,    149,   185. 
Ganse  v.  Perkins,  85. 
Garden  Gulch  Bar  Placer,   178, 

212. 

Garfield  v.  Goldsby,  23. 
Garfleld  Co.  v.  Hammer,  163. 
Garrard  v.   S.   P.  Mines,   45,   47, 

206. 

Garthe  v.  Hart,  67,  180. 
Garvey  v.  Elder,  179,  197. 
Gary  v.  Todd,  47. 
Gauthier  v.  Morrison,  35. 
Gaylord  v.  Place,   96. 
Gear  v.   Ford,   194. 
Gemmell  v.  Swain,  180. 
Geo.  B.   Foote,   212. 
German  Co.  v.  Hayden,  24,  214. 
Germania  Iron  Co.  v.  U.   S.   23. 
Giberson  v.  Tuolumne  Co..  178. 
Gibson  v.  Anderson,  46.  120. 

v.  Hjul,  111,  156,  165 

v.  Smith,  129. 

v.  Tyean,  47. 

Gillis   v.   Downey,    19,    103,    196, 

197,  206,  215. 

Gilmer  v.  Lime  Point,  76. 
Gilpin  Co.  v.  Drake,  151. 
Girard  v.   Carson.   158. 
Gird  v.  Cal.   Oil  Co.,   20,   36,   47, 

91,  119,  150,  163,  170,  174,  177, 

185,   186,   194. 
Glacier  Co.  v.  Willis,  67,  71,  84, 

138.   175. 
Gleeson    v.    Martin    White    Co., 

177,  185,   186. 
Godfrey  v.  Faust,  199. 
Gohres  v.  Illinois  Co. ,-173. 
Gold  Dirt  Lode,  59. 


TABLE)   OF  CASES   CITED. 


475 


(The  references  are  to  the  sections.) 


Goldberg  v.  Bruschi,  197. 
Golden  v.  Murphy,  50,  111. 
Golden  &  Cord  Claims,  59,  200, 

214. 

Golden   Crown   Lode,    211. 
Golden  Fleece  Co.  v.  Cable  Con. 

Co.,   1,   2,   151,   190. 
Golden  Reward  Co.  v.  Buxton, 

24,   87,   214,   215. 
Golden  Rule  Co.,  212. 
Goodenow  v.  Ewer,   59. 
Gordan  v.  Darnell,  66. 
Gore    v.    McBrayer,    43,    57,    58, 

164. 

Goss  v.  Golinsky,  177. 
Gould  v.  Wise,  79. 
Gowdy  v.  Kismet  Co.,  90,  211. 
Graciosa    Oil    Co.    v.    Sta.    Bar- 
bara Co.,   79,   96,   122. 
Grand  Canyon  Co.  v.  Cameron, 

20,   23,   24,   214,   215. 
Grand    Cent.    Co.    v.    Mammoth 

Co.,  50,  112,  154,  181,  206,  207. 
Granite  Co.  v.  Maginnes,  67. 
Grassy  Gulch  Claim  177. 
Gray  v.  N.  M.  Co.,  79,  102. 

v.  Truby,  156. 

Gray  Lumber  Co.  v.  Gaskin,  85. 
Green  v.   Garvin,   150,   177,  185, 

186. 

—  v.  Turner,  99. 
Greenameyer  v.  Coate,  82. 
Gregory  v.  Gregory,  59. 

v.   Pershbaker,   47,   50,    99, 

190. 

Grenon  v.  Miller,   125. 
Grosfield    v.    Nigger    Hill    Co., 

172. 

Gross  v.  Hughes,  214. 
Grubb  v.  Bayard,  62. 
Gruwell  v.  Rocca,  216. 
Gutierres    v.    Albuquerque    Co., 

G.  V.  B.  Co.  v.  Bank,  57. 

v.  Hailey,  58. 

Gwillim  v.  Donnellan,   155,   158, 

172,   215. 
Gypsum  Placer  Claim,  20. 

Haggin  v.  Kelly,  85. 
Hahn  v.  James,  20. 
Hailey  v.  G.  V.  B.  Co.,   58 
Hain  v.  Mattes,  138. 
Hall  v.  Abraham,   62. 
v.Kearney,   73. 

—  v.  Vernon,   81,   121, 
Halla  v.  Rogers,  61,   85. 
Hallack  v.  Traber,  178. 
Hamburg    Co.    v.     Stephenson, 

116. 


Hamilton   v.    Delhi   Co.,    79,    95, 
96. 

—  v.  So.  Nevada  Co.,  71,  96. 
Hammel  v.  Salzman,  125. 
Hammer     v.    Garfield     Co.     73 

150,  151,  185,  197. 
Hanchett  v.  Blair,  207 
Hand  v.  Cook,  165. 
Hanley  v.  Watterson,  66. 
Hans   Oleson,    120. 
Hansen     v.    Fletcher,    150,    173, 

185,   186. 
Hanson   v.    Craig,    71,    120,    154, 

168. 

Hard  Cash,  116,  211, 
Hardin   v.    Hardin,    57. 

v.  Jordan,  35,   124. 

Hardy  v.  Johnson,  .59. 
Hare  v.  Birkenfield,  13. 
Hargrave  v.  Cook,   144 
Harkrader    v.    Carroll,    10,    19, 

—  v.    Goldstein,    135. 
Harnish  v.  Wallace,  157 
Harper    v.    Hill,     50,     154,    173, 

—  v.  Independence  Co.,  66,  79. 
Harrington    v.     Chambers,     50, 

v.  Demaris,    141. 

v.  Paterson,   83. 

Harris   v.    Equator   Co.,    67,    71 

84. 
v.     Kellogg,     19,     163,     196, 

— •  v.Lloyd,    58. 

—  v.  Tyson,   83. 
Hartman  v.   Smith,   116. 

—  v.   Warren,   82. 
Hartney  v.  Gosling,  57,  58,  59. 
Hartwell  v.  Camman,  47. 
Harvey  v.  Ryan,  1. 

Harvey  M.  La  Follette,   35. 
Hastings    Co.    v.    Whitney,    10, 

Hausewirth   v.   Butcher,    173 
Hawes  v.  Contra  Costa  Co.    13 
Hawgood   v.    Emery,    194,    200 
Hawkins  v.   Spokane  Co.,   59 
Hawley  v  Diller,  23,  82,  93. 
Haws    v.    Victoria    Copper    Co 
1,   124,   177,   179,   185,   186,   190^ 

Hayes    v.     Lavagnino,     50,     96, 

154,   155,   157. 

Haynes  v.  Briscoe,  59,  200,  214 
Hays   v.   U.    S.,    104. 
Headley  v.  Colonial  Oil  Co     96 
Healey    v.    Rupp,    20,     87,    'l54' 

214,   215. 
Hecla   Co.,    116. 


476 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Helena  Co.  v.  Baggaley,  20. 

v.   Dailey,    116,   215. 

Heman  v.  Griffith,   154. 
Henderson  v.   Ferrell,   121. 

v.  Fulton,  47,  50,  68,  96,  99, 

119,  125,  172. 

Hendricks  v.  Morgan,   57. 
Hendy  v.  Compton,  28. 
Henry  Wax,  36. 
Hess  v.  Winder,  71. 
Heydenfeldt  v.   Daney   Co.,   28, 

45. 
Hickey    v.    Anaconda    Co.,    68, 

185,  193,  207. 

Hidden  Treasure,  89,  211. 
Hidee  Co.  177,  180. 
Higgins  y.  Armstrong,   58. 

v>  Carlotta  Co.,  79. 

Highland  Boy  Co.  v.  Strickley, 

76. 

Highland  Marie,   194,   195. 
H.  H.  Yard,  24,  45,  67,  120,  158. 
Hines  v.  Miller,   79,  101. 
Hiram  M.  Hamilton,  82,  93,  108. 
Hiram  C.  Smith,  120. 
Hirschler  v.  McKendricks,  194, 

198. 

Hisbour  v.  Reeding,  57. 
Hoban  v.  Boyer,  20. 
Hobart  v.   Ford,   77. 
Hobbs  v.  Amador  Co.,  127. 
Hoffman  v.  Beecher,   215. 
Holden  v.   Hardy,   80. 
Holdt  v.  Hazard,  163,  168. 
Holman   v.    Central   Mines   Co., 

215. 
Holmes   v.    Salamanca    Co.,    20, 

73. 

Holmes  Placer,  36. 
Holt  v.  Murphy,- 23,  59,  68. 
Homer  Santee,   212. 
Honaker  v.  Martin,  194,   198. 
Hoogendorn  v.  Daniel,   66. 
Hooper  v.  Young,  207. 
Hope  v.  Brown,  138,  215. 
Hope  Co.,  173. 
Hopkins  v.  Butte  Co.,  20. 
Home  v.   Smith,  35,   124,  212. 
Hosford  v.  Metcalf,  62. 
Hosmer  v.  Wallace.  214,   216. 
Hough  v.  Hunt,   194. 
Howard  v.  Luce,  58. 

-v.   Throckmorton,   59. 

Howell   v.   Johnson,    141. 
Howeth  v.  Sullinger,   173,   177. 
Hoyt  v.  Russell,   185. 

—  v.  Weyerhaueser,   23. 
Hudephol   v.    Liberty   Hill    Co., 

61. 

Huff  y.  McCauley,  62 
Huggins  v.  Daley,  122. 


Hughes  v.  Devlin,   81. 

v.  Lansing,   79. 

v.   Ochsner,    1,    185. 

Hulda  Rosling,   93. 
Humbird  v.  Avery,   10. 
Hunt  v.  Eureka  Co.,  215. 

v.  Patchin,      59,      82,      179, 

207. 

v.  Steese,  26,   85,  157. 

Hutchinson  v.  Kline,   67. 
Hyman  v.  Wheeler,  50. 

lams  v.  Carnegie  Co.,  122. 
Iba  Co.  v.  Central  Ass'n.,   20. 
Idaho  Co.  v.  Davis,  79,  96. 

v.  Winchell,   79. 

Ide  Co.  v.  Leiser,   66. 

Igo  Bridge  Ex.  Placer,  91;  Il9. 

Illinois  Co.  v.  Budzisz,  206. 

v.  Raff,  50,  85. 

In  re  Morgan,   80. 

Indiana  v.  Miller,  105. 

Ingersol  v.   Scott,   194,   198. 

Ireland  v.  Henkle,   108. 

Iron    Co.    v.    Campbell,    89,    96, 

119,  181,  206,  207,  211,  215. 
v.  Cheesman,    50,    110,    112, 

206. 
V.Elgin    Co.,    50,    110,    111, 

168,  177,   206. 
v.  Mike     &    Starr    Co.,    50, 

119,   138,   157. 

—  v.  Murphy,  50,   155,  172. 
Ivanhoe    Co.    v.    Keystone    Co., 

28,  45. 


Jackscn  v.  McFall,   20. 

v.  Roby,   194,   195. 

James  v.  Germania  Co.,   23,   82, 

106. 

James  Carretto,   194. 
Jas.  W.  Logan,   121,   124,   146. 
Jameson   v.   James,   82. 
Janette  W.  Riley,  46,  154. 
Jantzon    v.    Arizona    Co.,     168, 

186,   190. 

J.  B.   Hoggin,   116,   168. 
Jefferson    v.    Anchoria    Co.,  20, 

24,   177,   214. 
Jefford  v.  Hines,   23. 
Jenkins  v.  Johnson,  99. 
Jennings   v.   Rickard,   57. 
Jennison   v.   Kirk,    1,    77,    141. 
Jeremy  Co.  v.  Thompson,  3,  92, 

126. 

Jessie  E.  Oviatt,  108. 
J.  H.  Lessard,   124. 
Johanson  v.  Washington,.  28. 

v.  White,  154,  180. 

John  C.  Miller,  24. 


TABLE   OF   CASES   CITED. 


477 


(The  references  are  to  the  sections.) 


John   C.   Teller,    178,    187. 

John   M.   Rankin,  120. 

John  P.  Hoel,  124. 

John  R.   Gentle  &  Co.  v.   Brit- 
ton,   79. 

John  W.  Gabathuler,  46. 

Johnson,  173. 

v.    Butte    &    Superior    Co., 

101. 

v.  Cal.  Lustral  Co.,  47,   98, 

101,   102. 

v.  Dines,    149. 

v.Johnson,  35. 

v.  McLaughlin,    1,    162. 

v.  MacMillan,  129,  130. 

v.  Skillman,  62. 

v.  Towsley,   82. 

v.  Withers,   47,   83,   99. 

-v.  Young",  178,  180. 


Johnston   v.    Standard    Co.,    78, 

83. 

Johnstone  v.  Robinson,  164. 
Jones  v.   Clark,   58. 

v.Jackson,   127. 

v.  Pac.  Co.,  19. 

v.  Prospect     Co.,     50,     155, 

206. 

v.Robertson,   145. 

-v.  U.   S.,  76. 

v.  Wild     Goose     Co.,      172, 

173,  174,  175. 

Jordan  v.  Duke,   178,   190. 
Joseph  Black  Bear,   46. 
Juno  Lode  Claim,  214. 
Jupiter   Co.   v.   Bodie   Con.   Co., 

1,    50,    150,    151,    154,    155,   199. 
Jurgenson  v.  Diller,   79. 
Justice   Co.   v.   Barclay,   50,   71, 

194,   198. 

-v.  Lee,   163,   206. 

v.  Plank  Co.,   85. 

Kahn  v.  Cent.   Smelt.  Co.,   5.8. 

v.  Old  Tel.  Co.,   151,   206. 

Kaiser  Co.  v.  Curry,  223. 
Kannaugh  v.  Quartette  Co.,  20, 

215. 

Kan.  City  Co.  v.  Quigley,  11. 
Kan.  Nat.   Co.  v.   Haskell,   121. 
Katz  v.   Walkinshaw,   121. 
Kean  v.  Calumet  Co.,  35. 
Keeler  v.  Trueman,   163. 
Kelley  v.  Owens,   83. 
Kellogg  v.   King,    85. 
Kendall    v.    San    Juan    Co.,    46, 

190. 
Kennedy  v.   Crawford,   121. 

v.   Dickey,   23. 

—  v.  Pekin  Co.,   67. 
Kcrlin  vf  West,   85. 


Kern  Oil  Co.  v.  Crawford,   177. 
Kerns  v.  Lee,  24,   82. 
Keystone  Co.  v.  Gallagher,  79. 

v.  Nev.,  45,  116. 

Kidd  v.   Laird,   144. 

Kift  v.  Mason,  61,  119. 

Kimberly  v.  Arms,  58. 

King    v.    Amy    Co.,    2,    50,    110, 

111,  154,  173,  177. 

V.Bradford,  47. 

v.Edwards,  1,  43. 

•  v.  McAndrews,  82,  206. 

Kingston  v.  Eckman,  129 
Kinkade  v.  Cal.  25,  28,  35. 
Kinney  v.  Fleming,  72,  151. 

v.    VanBokern,    215. 

Kinsley    v.    New    Vulture    Co., 

194. 

Kirby  v.  Potter,  35,  46,  121,  124. 
Kirchner  v.   Smith,   58. 
Kirk  v.  Meldrum,  20,  174,  178. 
Kirwan  v,  Murphy,   27,   35. 
Kiser  v.  McLean,  i21. 
K.iellman   v.    Rogers,    19. 
Kleppner  v.   Lemon,   122. 
Klopenstine  v.  Hays,   198. 
Knickerbocker     Co.     v.     Halla 

200. 
Knight  v.  U.  S.  Land  Ass'n,  23, 

46,  211. 

Knutson  v.  Fredlund,  73,  197. 
Kohl  v.  U.  S.,  20,  76. 
Kolachny  v.  Galbreath,   122. 
Koons  v.  Bryson,  71. 
Krall  v.  U.  S.,   141. 
Kramer  v.   Settle,    164. 

Lackawanna  Placer  Claim,  211, 

214. 

Lake    Superior    Co.    v.    Patter- 
son,  24. 
Lakin  v.  Sierra  Buttes  Co.,  72, 

73,   82. 

Lalande  v.   Saltese,   45,   68,   136. 
Landsdale  v.  Smith,  78. 
Lange  v.  Robinson,  71,  154,  157. 
Largey  v.  Bartlett,   179. 
Larkin    v.    Upton,    50,    68,    110, 

154,  155,  172. 
Lamed  v.  Jenkins,   68. 
Larsh  v.  Boyle,  58. 
Last  Chance  Co.  v.  Bunker  Hill 

Co.,    50,    68,    71,    72,    103,    110, 

144,  168,  177,  190. 
v.    Tyler   Co.,    20,    68,   111, 

206,   207,   215. 
Lauman  v.  Hoofer,   20. 
Lavagnino    v.    Uhlig,     20,     165, 

179,  180. 


478 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Lawrence  v.  Potter,  23. 

v.  Robinson,  57,  58. 

Lawrence  Donlan,  216. 

Lawson  v.  U.  S.  Co.,  50,  154, 
207,  215. 

Leadville  Co.  v.  Fitzgerald,  50, 
71,  111. 

Leadville  Office,  197. 

Leavenworth  Co.  v.  U.  S.,  46. 

Lebanon  Co.  v.  Con.  Republi- 
can Co.,  67. 

Ledoux  v.  Forester,  155,  164, 
168,  173,  177. 

Le  Fevre  v.  Amonsan,  214. 

Le  Marchal  v.   Tegarden,   23. 

Le  Neve  Mill-site,  116. 

Lee  v.  Johnson,  10,  82. 

v.  Stahl,  50,  215. 

Lee  Doon  v.  Tesh,  20. 

Legatt  v.  Carroll,  144. 

Leonard  v.  Lennox,  23,  47,  108. 

Leviston  v.  Ryan,  207. 

Lewis  v.  Beeman,  79. 

v.  Curry,   223. 

v.  Miller  &  Lux,  223. 

Liddia  Claim,  67,  211. 

Lightner  Co.  v.  Court.  10. 

Lily  Co.  v.  Kellogg,  20.  214. 

Lindemann  v.  Belden  Con.  Co., 
79. 

Litchfield  v.  Register  &  Re- 
ceiver, 27. 

Little  Dorrit  Co.  v.  Arapahoe 
Co.,  73,  197. 

Little  Emily  Co.,  214. 

Little  Gunnell  Co.  v.  Kimber, 
179. 

Little  Josephine  Co.  v.  Fuller- 
ton,  50,  111. 

Little  Pittsburg  Co.  v.  Amie 
Co.,  155,  156,  158. 

Loaiza  v.  Court,  19. 

Lockhart  v.  Farrell,  20,  155, 
165,  172. 

v.  Johnson,  46,  73,  120,  124, 

179,  197. 

•  v.Leeds,   45,   59,   179. 

v.Rollins,   179,   194. 

v.Wills,  45,  156,  168. 

Loeser  v.  Gardiner,  72,  168. 

Lohman  v.  Helmer,  67,  163. 

Lonabaugh  v.  U.  S.,  207. 

Londonderry  Co.  v.  United  Gold 
Co.,  151,  185. 

Lone  Dane  Lode,  158. 

Lone  Jack  Co.  v.  Megginson, 
163. 

Limorgan  v.  Shockley,  214. 

Loney  v.  Scott,  19,  29,  46,  47, 
82. 


Long  Beach  Co.  v.  Richardson, 

121. 

Longmire  v.  Smith,  100. 
Lord  v.  Carbon  Co.,  145. 
Lorenz  v.  Jacob,  76. 

v.  Waldron,  45. 

Louisville   Co.   v.   Hayman  Co., 

213,  214. 

Louisville  Lode  Case,  90. 
Lovely  Placer  Claims,  126,  214. 
Loy  v.   Alston,   58. 
Lozar  v.   Neill,   20. 
Lucky  Find  Co.,  214. 
Lux  v.  Haggin,  35,  124. 
Lynch  v.  U.  S.,  26,  29. 

Mabel  v.  Pearson,   85. 
McCann  v.  McMillan,  43,  72,  96, 

150,    151,    168,    179,    180,    186, 

190. 
McCarthy  v.   Speed,   67,   72,   73, 

157. 

McCleary  v.  Broaddus,  1. 
McCord  v.   Oakland  Co.,   59,   85. 
McCormick  v.  Baldwin,   198. 

v.  Hayes,   23. 

v.  Los  Angeles  Co.,  79. 

v.  Parriott,   195. 

v.  Sutton,  28. 

McCowan  v.  Maclay,  169,  206. 
McCreery  v.  Haskell,   28. 
McCullough     v.     Murphy,     164, 

195,  19«,   197. 

McDaniel  v.  Moore,  59,  200. 
McDonald   v.    Mont.   Wood   Co., 

119,   154. 

McDonnell  v.  Eaton,  12. 
McElligott  v.  Krogh,  173,  177, 

180. 

McEvoy  v.  Megginson,  163. 
McFadden  v.  Mt.  View  Co.,  3,  4, 

6,   14,   46,   104,   215. 
McGahey  v.  Oregon  Co.,   57. 
McGinnis    v.    Egbert,    178,    187, 

193,   196. 

McGowan  v.  Alps  Co.,  20,  214. 
McGraw  v.  Lakin,   67,  103. 
M'Intosh  v.  Price,  149,  151,  173, 

174,   185. 

Mclntosh  v.  Robb,  61. 
McKay  v.   McDougall,   1,   2,   72, 

73,    96,   177,    198. 

—  v.   Neussler,   73,   195. 
McKenzie,   Petitioner,    14,   19. 

v.  Coslet,   57. 

McKinley  v.  Wheeler,  43,   163. 
McKinley  Creek  Co.   v.  Alaska 

United  Co.,  124,  149,  163,  168, 

171,  177. 


TABLE   OF   CASES1  CITED. 


479 


(The  references  are  to  the  sections.) 


McLaughlin    v.    Thompson,    57, 

156. 
McLemore   v.    Express    Co.,    71, 

93,  104,  106,  119,  120,  154,  193, 

194. 

M'Mahon  v.   Meehan,   164. 
M'Millen     v.     Ferrum     Co.,     50, 

154,    156,    157. 
McPherson  v.   Julius,   172,   173, 

177,   180. 

McQuiddy  v.  Cal.,  45,  47. 
McShane  v.  Carter,  67,  102. 

v.  Kenkle,  155,  157. 

McWilliams  v.  Winslow,  20. 
Madar  v.  Norman,   59. 
Madison  v.  Octave  Oil  Co.,  47, 

50,   197. 

Madison  Placer  Claim  Co.,  20. 
Magruder  v.  O.  &  C.  R.  Co.,  26. 
Maguire  v.  Tyler,  214. 
Malaby  v.  Rice,  59,  207. 
Mallett  v.  Uncle  Sam  Co..  1. 
Malone  v.  Big  Flat  Co.,  79,  95. 
v.    Jackson,    71,    104,    179, 

193. 

Mammoth  Co.  v.  Juab  Co.,  95. 
Manhattan  Co.,  188. 

v.   Carrell,    122. 

Manley  v.  Boone,  81. 
Mann  v.  Budlong,  194. 
Manning  v.  App  Con.  Co.,  80. 

-v.  Fraser,   62. 

v.  Strehlow,   20. 

Manuel  v.  Wulff,  163,  171. 
Manufacturing   Co.    v.    Indiana 

Co.,  47,  120a. 
Manville  v.  Parks,  57. 
Mares  v.  Dillon,  20. 
Margaret  E.   Scully,  212. 
Marks  v.  Gates,  57. 
Marquez  v.  Frisbie,   10,   27. 
Marthinson  v.  King,   66. 
Marvel  v.  Merritt,  98,  99. 
Mary  Darling,   211. 
Mary  McM.  Latham,  214. 
Mary  Ward,  93. 

Mathews  Slate  Co.  v.  New  Em- 
pire Slate  Co.,  61,  66. 
Matlock  v.  Stone,  163. 
Mattes  v.  Treasury  Co.,  213. 
Mattingly  v.  Lewisohn,   59. 
Max  Loibl,  124. 
Maxwell  v.  Brierly,  47. 
Maye  v.  Yappen,  85. 
Mayflower  Co.,  211. 
Meagher  v.   Hardenbrook,    144. 

v.   Reed,   57. 

Medley  v.  Robertson,   28. 
Megarrigle,  47. 
Menotti  v.  Dillon,  10. 


Merced  Co.  v.  Fremont,  85. 
Merced  Oil  Co.  v.  Patterson,  67, 

158. 

Merk  v.  Bowery  Co.,   61,   66. 
Merrill  v.  Dixon,  26,  45,  168. 
Merritt  v.  Judd,  95,  179. 
Mery  v.  Brodt,  68.  129,  207,  215. 
Metcalf  v.  Prescott,  151,  185. 

v.  Watertown,  11. 

Meydenbauer  v.  Stevens,  19,  50. 

97,   99,   149,   150,  151,  155,  157, 

177,  190. 

Meyers  v.  Farquaharson,  67. 
Meylette  v.   Brennan,   57. 
Michael  Pszyk,  4. 
Midland   Oil   Co.  v.   Turner,   19. 
Migeon  v.   Mont.   Cent.   Co.,   50, 

119. 

Miles  v.  Kennan,   179. 
Milford  Co.,   213. 
Mill  Side  Lode,   135. 
Miller  v.   Butterfield,   57. 
v.    Chrisman,     46,     67,     72, 

119,   120,   154,   158,   168,   177. 

v.  Girard,   158. 

-v.  Grunsky,   212. 

v.  Hamley,   72. 

Miller  Placer   Claim,    168. 
Mills  v.  Fletcher,  193,   195,  197. 
Milton   S.  Gunn,   120. 
Milwaukee  Co.  v.  Gordan,   178, 

187. 

v.  Shea,  66. 

Minah  Co.  v.  Briscoe,  179. 
Mint  Lode,   116. 
Miocene  Co.  v.  Jacobsen,   77. 
Miser  v.  O'Shea,   127. 
Mitchell   v.   Broso,   156. 
v.  Cline,  81,   170. 

—  v.  Hutchinson,   168. 
Moffat    v.    Blue    River    Co.,    72, 

119. 

Mohl  v.  Lamar  Co.,  141. 
Mojave  Co.  v.  Karma  Co.,   213. 
Mongrain  v.   N.   P.   R.   Co.,   116. 
Mono  Fraction,  179,  180. 
Monroe    Cattle    Co.    v.    Becker, 

82. 

Monster  Lode  No.   2,   212. 
Montague  v.   Dobbs,   47. 
Mont.  Cent.  Co.  v.  Migeon,  155. 
Mont.  Co.  v.  Boston  Co.,   177. 

—  v.Clark,  111,  177,  180. 

—  v.Mont.   &  Boston  Co.,   67. 

v.  St.  Louis  Co.,  67,  85,  177. 

Montrozona    Co.     v.    Thatcher, 

61. 

Moon  v.  Rollins,  72. 
Moore   v.   Hammerstag,    57,    67, 

164. 


180 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Moore  v.  Pooley,  83. 

v.  Robbins,  23. 

•  v.  Steelsmith,    190. 

Moorhead  v.  Erie  Co.,  180. 
Moran  v.  Bonynge,  28. 
Morenhaut  v.  Wilson,  59.   72. 
Morgan  v.  Antlers  Co.,  215. 

v.Myers,  194. 

Moritz  v.  Lavelle,   57. 
Morrill  v.  N.  P.  R.  Co.,  47. 
Morris  v.  Beam,   143. 

— -  v.  Gilmer,    13. 
Morrison    v.    Regan,    178,    185, 

187. 

Morrow  v.  Matthews,  57,  78. 
Morse   v.   DeArdo,    102. 
Morton    v.    Solambo   Co.,    1,    59, 

72,-  164,   186. 
Md.  City  Co.  v.  Goodspeed  Co., 

122. 

Mt.  Blanc  Co.  v.  Debour,   20. 
Mt.  Chief  Claims,  211. 
Mt.    Copper    Co.    v.    VanBuren, 

80. 
Mt.   Diablo   Co.  v.   Callison,    50, 

99,   102,   110,   155,   194. 
Mt.  Rosa  Co.  v.  Palmer,  45,   68, 

119,   181,   206. 
Moxon  v.  Wilkinson,  99. 
Moyle  v.  Bullene,  187. 
Mudsill  Co.  v.  Watrous,  83,   87, 

99. 

Muldoon  v.  Brown,  186,  189. 
Muldrick  v.  Brown,   154. 
Mullan  v.  U.   S.,  47,  108. 
Mullins  v.  Butte  Co.,  81. 
Murley  v.   Ennis,   57. 
Murphy  v.  Tanner,  35. 
Murray  v.  Allred.  47,  67,  98,  99. 

v.  Osborne,  73,  188. 

-v.  Polglase,     20,     193,     197, 

214. 

v.  Tulare  Co.,  67. 

v.  White,  24,  25,  155,  215. 

Murray    Hill     Co.    v.    Havener, 

196. 
Mutchmor   v.    McCarty,    45,    50, 

119,   151,   168,   190. 
Myers  v.  Spooner,  43,  72,  177. 

Narver  v.   Eastman,   125. 
Nash  v.  McNamara,   16,   180. 
National  Co.  v.  Piccolo,  19. 
Neill  v.  Shamburg,  83. 
Noilson  v.   Champagne   Co.,   82, 

207. 
Nesbitt  v.  Delamar  Co.,  20,  199, 

214. 

Nettie  Lode  v.  Texas  Lode,  215. 
Neuebaumer  v.  Woodman,   172. 


Neuman  v.  Driefurst,   59. 

Nev.  Ditch  Co.  v.  Bennett,  143. 

Nev.    Sierra    Oil    Co.    v.    Home 

Oil    Co.,    19,    46,    71,    104,    120, 

154,   157. 
New    Cache   Co.    v.    Water   Co., 

144. 
New    Dunderberg     Co.    v.    Old, 

206,    214. 
New   England   Co.   v.   Congdon, 

120,   154. 

N.  J.  Co.  v.  Gardner,  71. 
N.    Y.    Hill    Co.    v.    Rocky    Bar 

Co.,   215. 

Newcomb  v.  Burbank,  10,  13. 
Newhall  v.  Sanger,   104. 
Newman  v.  Barnes.  20. 
Nicholls  v.  Lewis  &  Clark  Co., 

172,   173. 
Nichols    v.    Williams,    155,    156, 

177. 
Nielson  v.  Champagne  Co.,  212. 

214. 

Niles  v.  Cedar  Point  Club,  35. 
Nippel  v.  Forker,   141. 
Noland  v.   Coon,   67. 
Nome  and  Sinook  Co.  v.  Simp- 
son, 10. 

v.  Snyder,   91,   170. 

v.  Townsite,  136,  211,  216. 

Nome  T.   Co.,   146. 

N.  Bloomfield  Co.  v.  U.   S.,   123. 

N.   Clyde  Claims,   213. 

N.   Noonday  Co.   v.   Orient   Co.. 

151,  155.   179. 
N.   P.   R.   Co.,   214. 

v.  Cannon,   24. 

v.  Pettit,   120. 

v.Sanders,   89. 

v.  Soderberg,   45,  47,  99. 

No.  Star  Lode,   215. 
Northmore    v.    Simmons,     1,    2, 

156,   193. 

Northwestern  Co.,  214. 
Nowell  v.  McBride,  82. 
Noyes  v.  Clifford.  119. 
— —  v.  Mantle,  206. 

Oberto  v.  Smith,  72. 
O'Connell  v.  Pinnacle  Co.,  67. 
O'Donnell    v.    Glenn,    154,    155, 

157 

Ohio  Oil  Co.  v.  Indiana,  121. 
O'Keiffe  v.   Cunningham,   127. 
Olive  Land  Co.  v.  Olmstead,  45, 

46,    120,    212. 
Omar  v.  Soper,   50,  188. 
Orchard  v.  Alexander,  214,  216. 
Oreamuno    v.    Uncle    S'am    Co., 

177. 


TABLE  OF  CASES  CITED. 


481 


(The  references  are  to  the  sections.) 


Oregon  Co.  v.  Hertzberg,  82. 
Oregon     King     Co.    v.    Brown, 

177. 

p.   &  C.   R.   R.   Co.   v.   Puckett, 
r  29. 

v.  Willamette  Co.,  120. 

O'Reilly   v.    Campbell,    20,    154, 

163,  172,  190. 
Original  Co.  v.  Abbott,  207. 

v.  Winthrop,  1,  2,   193. 

Ormund  v.  Granite  Mt.  Co.,  87. 

Orr  v.  Haskell,  1. 

Oscamp   v.    Crystal   River    Co., 

180,   198. 

Otaheite  Co.  v.  Dean,  127. 
Overman  Co.  v.  Corcoran,  76. 
Oviatt  v.  Big  4  Co.,  143. 

Pac.  Coast  Co.  v.  N.  P.  R.  Co., 

45,   46,   47,   99,   104. 
•  v.  Spargo,    46. 

Packer  v.  Bird,  35. 

Page  v.  Summers,  57,  179. 

Pagosa  Springs,  46. 

Palmer  v.  Uncas  Co.,  79. 

Parish     Fork    Co.     v.     Bridge- 
water  Co.,  122. 

Parks  Co.  v.  Hoyt,  141. 

Parrot  Co.  v.  Heinze,  206. 

Parsons  v.  Venzke,  214,  216. 

Patrick  v.  Weston,  58. 

Patten    v.     Conglomerate     Co., 
113. 

Patterson  v.  Hewitt,  59,  68,  78, 
83. 

v.Hitchcock,    68,    110. 

v.  Tatum,   206. 

Paul  v.  Cragnaz,  59. 

Pawnee  Co.  v.  Royce,  80. 

Payne  v.  Neuval,   122. 

Payton  v.  Burns,  185,  190. 

Peabody   Co.   v.   Gold  Hill   Co., 
82. 

Pearl    Oyster    Co.   v.   Heuston,  ' 
146. 

Peasely  v.  Whiting.   129. 

Pelican  Co.  v.  Snodgrass,  154. 

Penn  v.  Oldhauber,  1,  195. 

Penn  Co.  v.  Bales,  20. 

v.  Smith,  66. 

Penny  v.  Cent.  Coal  Co.,  85, 

People  v.  Bell,  98,  102,  103,  120. 

v.  Blake,   67. 

v.  District   Court,    76. 

-v.  Gold  Run   Co.,   145. 

Peoria  Co.  v.  Turner,  214. 

Perego  v.  Dodge,   20,   216. 

Perigo  v.  Erwin,  158. 

Peter  N.  Hanson,  212. 

Peters  v.  Tonopah  Co.,  185,  190. 


Petroleum  Co.  v.  Coal  Co.,  121. 
Pettus  v.  Roberts,  83. 
Phifer  v.  Heaton,  47. 
Philes  v.  Hickey,  67. 
Philip  Contzen,   165. 
Phillips  v.  Brill,  120,  154. 

v.Salmon  R.  Co.,  96. 

v.  S'mith,   20,   46. 

Philpotts  v.  Blasdell,  67,   186. 
Phipps  v.  Hully,   87. 
Phoenix  Co.  v.  Pechner,  10. 

v.  Scott,   96. 

Pierce  v.  Sparks,  82. 
Pine  R.  Co.  v.  U.  S.,  132. 
Pittsburg  Co.  v.  Bailey,  66. 

-v.  Glick,  87. 

Pittsburg-Nevada   Co.,    67. 

Plummer  v.  Brown,  82. 

P.  M.  Gill,  47. 

Poire  v.  Wells,  82,  96,  135,  206. 

Polk  v.  Sayre,  66. 

'V.  Sleeper,  28. 

Pollard  v.  Shively,   190. 

Poplar  Creek,   154. 

Porter  v.  Tonopah  Co.,  20,  155, 

178,  179,   187. 
Porters    Bar    Dredging    Co.    v. 

Beaudry,   144. 
Postal  Tel.   Co.  v.  O.  S.  L.  Ry. 

Co.,  76. 

Potts  v.  Alexander,  207. 
Power  v.  Sla,  73,  193,   194,  197. 
Powers  v.  C.  &  O.  R.  Co.,  10. 
Pralus  v.  Pacific  Co.,  1. 
Pratt    v.    United    Alaska    Co., 

174. 
Preston    v.    Hunter,     186,     190, 

198. 

Price  v.  M'Intosh,  1. 
Prince  v.  Lamb,  57. 
Prosser  v.  Finn,  165. 

v.  Parks,   1,   168. 

Protective    Mg.    Co.    v.    Forest 

City  Co.,  190,  195. 
Providence    Co.    v.    Burke,    20, 

185,   186. 

v.  Marks,   20. 

v.Nicholson,  101. 

Puget  Co.,  87. 

Purdum  v.  Laddin,  185. 

Purtle  v.  Steffee,  26. 

Quigley  v.  Gillett,  16,  73,  178. 
Quinby  v.  Conlan,  23. 
Quinlan  v.  Noble,  77. 

Racoullat  v.  Sansevain,  163. 
Randall  v.  Meredith,  121. 
Rara  Avis  Co.  v.  Bouscher,  79. 
194. 


482 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Rawlings  v.  Armel,   122. 

•  v.Casey,  20. 

Ray  v.  Hodge,   57. 
Raynolds  v.  Hanna,  122. 
Reavis  v.  Fianza,  5. 
Rebecca  Co.  v.  Bryant,  214. 
Redfield  v.   Parks,    71. 
Reed  v.  Bowron,  214. 

v.  Hickey,   66. 

v.  Munn,  59,  67,   206. 

Reedy  v.  Wesson,   68. 
Reese  v.  Bald  Mt.  Co.,  79. 

v.  Thorburn,  28. 

Reilly  v.  Berry,  185,  186. 
Reiner  v.   S'chroeder,    172. 
Reins  v.  Murray,  177. 

-v.   Raunheim,   154. 

R.   F.   Pettigrew,    106. 
Remington  v.  Baudit,  194. 

v.  C.  P.  R.  Co.,  10. 

Renshaw  v.   Switzer,   72. 
Repeater  Claims,  59,  199,  200. 
Repinsky  v.  Hinchman,  135. 
Resurrection     Co.    v.     Fortune 

Co.,  85. 
Reynolds    v.    Iron    Co.,    45,    68, 

119,   181,   211. 

v.  Pascoe,  120,  154. 

Riborado  v.  Quang  Pang  Co.,  1. 
Ricard  L.  Powell,  165. 
Rice  y.  Rigley,  57. 

v.  State,  28. 

Richards  v.  Dower,  134. 

v.  Wolfing,  24,   158. 

Richardson  v.  Hardwick.   66. 

Richmond  Co.  v.  Rose,  20,   215. 

Richter  v.  Utah,  47. 

Rico  Lode,   213. 

Rico-Aspen    Co.    v.    Enterprise 

Co.,   19. 

Ridgeway  Co.  v.  Elk  Co.,   47. 
Riley  v.  N.  S'tar  Co.,  67. 
Ripinsky  v.  Hinchman,  10. 
Ripley  v.  Park,  141. 
Risch  v.  Wiseman,  169. 
Riste  v.  Morton,   2.  150. 
Ritter  v.  Lynch,  127. 
Robert  J.  Watson,  165. 
Roberts  v.  Date,  57. 

v.Wilson,   1. 

Robertson  v.   Smith,   1,   96. 

Rockwell  v.  Graham,   206,   215. 

Rodgers  v.  Pitt,  141. 

Rogers  v.  Cooney,  47,  127. 

Rollins  Co.,  101. 

Romance  Lode,  214. 

Rose  v.   Richmond   Co.,   20,    68, 

82,  186,  206,  207. 
Roseville  Co.  v.  Iowa  Co.,  179. 


Roseville     Alta     Co.     v.     Iowa 

Gulch  Co.,  95. 
Rough  v.  Simmons,  20. 
Roughton  v.  Knight,  45. 
Roxana  Co.  v.  Cone,  50. 
Roy  v.   Harney  Peak  Co.,   214, 

216. 
Royal   Con.   Co.   v.   Royal   Con. 

Mines,    67. 

Royal  K  Placer,   26,   157. 
Royston  v.  Miller,  81. 
Rupp  v.  Healey,  24. 
Rush    v.    French,    1,    164,    168, 

185,   186. 
Russell  v.  Bank,   59. 

•  v.  Chumasero,  151. 

v.Maxwell    Land    Grant 

Co.,   35,   212. 
-v.Wilson  Creek  Co.,  179. 


Ryan  v.  Egan,  81. 

v.  Granite  Hill  Co.,  45. 

Safford  v.  Fleming,  85. 

St.  Anthony  Co.  v.   Shaffra,   50. 

St.  John  v.  Kidd,  177. 

St.  Josephs  R.  Co.  v.  Baldwin, 

46. 
St.   Louis   Co.  v.   Kemp,   96,   98, 

102,   194,   206. 

v.    Mont.    Co.,    24,    50,    85, 

113,  138,  177,  206,  215,  216. 

St.  Paul  Co.  v.  Keslik,  120. 

y.  Schurmeier,  35,  124. 

Sam.  H.  Auerback,   178. 

Sam  McMaster,  215. 

San  Miguel  Co.  v.  Bonner,  110. 

Sanders  v.  Noble,  177,  185,  186. 

Sanford  v.  Sanford,  10,  82. 

S'.   F.   Sav.  Union  v.   Petroleum 

Co.,   121. 

Sans  Bois  Co.  v.  Janeway,  80. 
Saunders   v.    La   Purisima   Co., 

46,    207. 

v.  Mackey,  59,  179. 

Saxton  v.  Perry,  2,  177. 
Scadden  Flat  Co.  v.  Scadden, 

71. 

Scheel  v.  Alhambra  Co.,  107. 
Schirm  v.   Carey,  212. 
Schrimpf  v.  N.  P.  R.  Co.,  47. 
Schultz  v.  McLean,  82. 
Schwab   v.   Beam,    47,   110,    141, 

144,   206. 

Score  v.  Griffin,   154. 
Scott  v.  Maloney,   215. 
S.    C.    R.    Co.    v.    O'Donnell,    46, 

168,   177. 

Scruggs  v.  Decatur  Co.,   78. 
Sears  v.  Taylor,  1. 
Seidler  v.  La  Fave,  185. 
Selma  Oil  Claim,  19,  20,  215. 


TABLE   OF  CASES   CITED. 


483 


(The  references  are  to  the  sections.) 


Semple  v.  Hagar,  82. 

Settembre  v.   Putnam,   57,   58. 

Settle  v.  Winters,  61,  66,  79. 

Sexton  v.  Wash.  Co.,   191. 

Seymour  v.  Fisher,   178. 

Seymour  K.  Bradford,  165. 

Sharkey  v.  Candiani,  2,  72,  168, 
185,  190. 

Shaw  v.  Caldwell,  62. 

v.  Kellogg,   129,   154,  207. 

Shea  v.  Nilima,  57,  163. 

Shenandoah  Co.  v.  Morgan,  141. 

Shepherd  v.  Bird,  47. 

Shepley  v.  Cowan,  23. 

Sherlock  v.   Leighton,    20,    163, 
197. 

Shields  v.  Mongollon  Co.,  14. 

Shively  v.  Bowlby,  121,  146. 

Shoshone  Co.  v.  Rutter,   10,  11, 
20,  50,   155,   157,   178,   216. 

Shreve  v.  Copper  Bell  Co.  67. 

Shreveport  v.  Cole,  13. 

Sierra  Nev.  Co.  v.  Sears,  85; 

Silver  v.  Ladd,  82. 

Silver  Bow  Co.  v.  Clark,   215. 

Silver  City  Co.  v.   Lowry,   158, 

179. 
S.  P.  Mines  v.  Court,  66. 

v.  Valcalda,  116,  143. 

Sisson  v.  Somers,  1. 
Skidmore  v.  Eikenberry,  57. 
Skillman  v.  Lachman,  57,  58. 
Slavonian  Co.  v.  Perascich,  180, 

197. 
Slothower   v.    Hunter,    67,    190, 

211. 

Small  v.  Lutz,   16. 
Smallhouse    v.    Kentucky    Co., 

79. 
Smith  v.  Cascaden,  149,  151. 

-v.  Cooley,   81,    103. 

•  v.Hawkins,  141. 

-v.  Imperial  Co.,   20. 

• •  v.Jones,   66,  67,   81. 

v.  Newell,   154,   177,   190. 

— v.Sherman,    98. 

Smuggler  Co.  v.  Kent,  85. 

—  v.  Trueworthy,  215. 
Snider  v.  Yarborough,  61,  66. 
Snow  v.  Nelson,  66. 
Snow  Flake  Fraction,   168. 
Snowy   Peak  Co.   v.   Tamarack 

Co.,   73. 

Snyder  v.  Colo.  Co.,  47,  141,  143, 
144,   172. 

v.  Waller,  215. 

Sold  Again  Fraction,  67,  214. 
So.  Car.  Claims,  211. 
So.    Cross    Co.    v.    Europa    Co., 
150,   155,   157,   185,  190. 


So.  Cross  Co.  v.  Sexton,  23,  214. 

So.   End   Co.   v.   Tinney,    24     71, 
82,   162,  214. 

So.  Nev.  Co.  v.  Holmes,  110. 

So.   Nev.  Dev.   Co.  v.   Silva,   83, 
99 

So.  Penn  Co.  v.  Miller,  12. 

S.  P.  R.  Co.  v.  Dufour,  141. 

v.  Purcell,  104. 

v.  S.  F.  Say.  Union,  121. 

Southwestern   Co.,   47. 

v.  A.  &  P.  R.  Co.,  120. 

Sparks  v.  Pierce,  104. 

Speed  v.  McCarthy,  179. 

Spencer  v.  Winselman,   81. 

Spitley  v.  Frost,  94. 

Spokane  Co.  v.  Zeigler,  46. 

Stacey  v.  Glen  Ellyn  Co.,   62. 

Stamey  v.  Hemple,   66. 

Standard  Co.  v.  Habishaw,   10, 
24,  45,  71,   157,  206,  207. 

Stanley  v.  Min.  Union,  45. 

Stark  v.   Starrs,   93. 

Starkweather  v.  Jenner,  78 

State  v.  District  Court,  85. 

State  v.  N.  P.  R.  Co.,  29. 

v.Parker,  47. 

v.  Wright,  28. 

S'teel    v.    St.    Louis    Co.,    10,    23, 
45,   134,   163,   207. 

Steele  v.  Tanana  Co.,  26,  45,  50, 
154,    157,   168. 

Stemmons  v.  Hess,  214. 

Stemwinder  Co.   v.   Emma  Co. 

173. 
Stenfjeld  v.  Espe,  119,  168,  177. 

Stevens  v.  Gill,  50. 

-v.  Grand   Cent.    Co.    20,    59. 

68,  78,  179. 

v.  Williams,   50. 

Steves  v.  Carson,  20,  215 
Stewart,    47. 

•-  v.Douglass,  47,   57. 

v.  G.  &  C.  Co.,  163. 

v.  Rees,   71,   169. 

'V.  Westlake,   179. 

Stickley  v.  Mulrooney,  59 
Stinchfield  v.  Gillis,   50,   67. 
Stinson  v.  Hardy,  79. 
Stolp  v.  Treasury  Co.,  20 
Stone  v.  Arkwright,   47. 

•  v.  Geyser. Co.,   72. 

Stoner  v.   Zucker,   62,  77. 
Stoneroad  v.  Stoneroad,  35. 
Strang  v.  Ryan,  1,  .59,  73,  179. 
Street  v.   Delta  Co.,   1«,    72     73 
162,    168,    177,    178,    179,    180, 
186. 

Strepey  v.   Stark,   178,   190. 
Strickland  v.  Com.   Co..  72 


484 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Strickley  v.  Highland  Boy  Co., 

76. 

v.  Hill,  20,  163. 

Stuart  v.  Adams,  58,  59. 
Sturr  v.  Beck,  93,  141. 
Sturtevant  v.  Vogel,  1,  185,  190. 
Suessenback    v.    Bank,    59,    68, 

82,    207. 
Sullivan  v.  Dooley,  85. 

v.  Hense,  1. 

v.  Iron  Co.,   96,   206. 

v.  No.   Spy  Co.,  141. 

— •  v.  Schultz,   99. 

v.  Sharp,  155,  172,  178,  187. 

Summerville  v.  Apollo  Co.,  122. 
Superior  Oil  Co.  v.  Mehlin,  122. 
Sutter  Co.   v.  Nichols,   76,   101. 
Swanson  v.   Kettler,   179,   180. 
Sweeney  v.  N.  P.  R.  Co.,  26. 
Sweet  v.  Webber,   89,  96. 
Swigart  v.  Walker,  193. 
Sylvester  v.  Coe,   79. 
Synott  v.  Shaugnessy,  50. 

Table  Mt.  Co.  v.   Stranahan,   1. 
Tabor  v.   Drexler,   50,   111. 
Talbott  v.  King,  206. 
Talmadge  v.   St.  John,   150,  185. 
Tanner  v.  Treasury  Co.,  76. 
Taylor   v.   Middleton,    190. 

v.   Paranteau,   173. 

T.  D.  1675,  220,  221. 
Teller  v.  U.  S.,  130. 
Temescal  Co.  v.  Salcido,  150, 

177. 
Terrible   Co.   v.   Argentine   Co.. 

155,   156. 

Territory  v.  Mackey,  50. 
Territory  of  N.  M.,   126,  214. 
Thallman   v.    Thomas,    23,    104. 

179. 

Thayer  v.  Spratt,   129. 
Thomas  v.  Chisholm,  20,  163 

-v.  Elling,    20,    59,    214,    215. 

Thomas  B.  Walker,  24,  28. 
Thompson  v.  Lee,  186. 

v.  Spray,   164,  168,   178. 

v.  Wise  Boy  Co.,   79. 

Thomases  v.  Melsing,   163. 
Thornton   v.   Kaufman,    20,    73 

198. 
Tiggeman  v.   Mrzlak,   120,    150, 

154. 

Tilden  v.  Intervenor  Co..   215 
Tillotson  v.   Prichard,   36 
Tinkham  v.  McCaffrey,   26 
Tipton  Co.,   212. 
Titcomb  v.  Kirk,   77. 
Tom  Moore  Co.  v.  Nesmith,  90, 

Tombstone  Cases.   134. 


Tombstone  Co.  v.  Way  Up  Co., 

50. 

Tomera  Placer  Claim.  168. 
Tonopah  Co.  v.  Douglass,  20. 

•  v.  Fellanbaum,  68. 

v.  Tonopah  Co.,  20,  81,  156, 

158,  172,  177,  178. 
Tough  Nut  Claims,  214. 
T.  P.  Crowder,  108. 
Tracey  v.   Harmon,  190. 
Traphagen  v.  Kirk,   29,   134. 
Travis  Co.  v.  Mills,  127,  145. 
Traylor  v.  Barry,  79. 
Treasury  Co.   v.  Boss,   156,  158. 
Tredinnick   v.    Red    Cloud    Co., 

79,   96. 

Trevaskis  v.   Peard,   197. 
Tripp  v.  Dunphy,  211. 

v.  Overocker,   76. 

Tucker  v.  Watts,  122. 
Tuolumne     Co.    v.    Maier,    154, 

157,   172. 
Turner  v.    Sawyer,   20,    59,   200, 

207,   215. 
Twin  Lick  Co.  v.  Marbury,   78, 

83. 

Two   Sisters  Lode,  116. 
Tyee  Con.  Co.  v.  Jennings,  3. 

-v.  Langstedt,  67,   71. 

Tyler  v.  Sweeny,  72,  177. 
Tynon  v.  Despain,  77. 

Uinta  Co.   v.  Ajax  Co.,   96,   154. 

v.  Creede  Co.,  154,  177,  190. 

Ukiah  Co.  v.  Curry,  223. 
Union  Co.  v.  Dangberg,  59,  143. 

-v.  Leitch,    168. 

v.  Taylor,   59. 

U.  P.  R.  Co.  v.  Flynn,  12. 

•  v.  Harris,   104. 

v.Myers,  10. 

v.Peterson,   120. 

U.  S.  v.  Allen,  108. 

v.  Atherton,   23,   82 

v.  Bagnell  Co.,   134. 

v.Basic  Co.,  130. 

v.Benjamin,   42,  129. 

•  v.  Biggs.    125. 

•  v.  Blendauer,   104,   120 

-V.  Budd,   129. 

v.  C.  P.  R.  Co.,  26,  168. 

—  v.  Chandler-Dunbar,  68.  82, 
206. 

v.  Clark,   82. 

v.Conrad  Co.,  141. 

—  v.  Copper  Queen  Co.,   42. 

-V.Detroit  Co.,  82,  134,   214. 

v.  Doughten,  108.  125. 

v.  Duncan  Co.,  47 

v.  Edgar,   42,   130. 

•  v.  Forrester,  93. 


TABLE   OF  CASES  CITED. 


485 


(The  references  are  to  the  sections.) 


U.  S.  v.  Guglard,  85. 

v.  Heilner,   134. 

v.  Homestake  Co.,   85. 

v.  Iron    Co.,    23,    26,    50,    68, 

82,  99,   116,   119,   172,   195,   206, 

212. 

v.  Keitel,  173. 

v.  King,   212. 

v.  Laam,  23. 

-v.  Lawrence,  123. 

v.  McGraw,    82. 

•  v.  Minor,   23,   82. 

V.Missouri  R.  Co.,  46. 

v.  Mont.   Co.,   36. 

v.  N.  Bloomfield  Co.,   123. 

v.  Plowman,    130. 

v.Portland  Co.,  170. 

v.  Price  T.   Co.,   130. 

v.  Reed,  26,   82,   157. 

v.  Rizzinelli,    45,    110,    119, 

131,   162,   206. 

v.  Rossi,  68,  130. 

— —  v.  Rumsey,  23. 

v.  Scholl,  82. 

v.  Schurz,   23,   206. 

v.  Smith,  24,  41,  42,  43,  68, 

82,   125,   206. 
v.    Trinidad    Co.,     91,     108, 

170,   206. 

v.  Tygh  Valley  Co.,    104. 

-v.  United    Verde    Co.,    130, 


131. 

-v.  White,   23,   82. 

.  v.Williams,  134. 

v.  Winona    R.    Co.,    23,    46, 

82,  207. 
U.  S.  Co.  v.  Lawson,  50,  180. 

VV.   Wall,   215. 

Upton  v.  Larkin,   120,   154,   155, 

185,   186. 
v.    Sta.    Rita   Co.,    20,    169, 

186. 

Utah,   45. 

Utah  Co.  v.  Dickert,  197. 
Utah  Con.   Co.  v.   Bateman,   80. 
Utah  Onyx  Dev.  Co.,  47. 
Utt  v.  Frey,  72. 

Valcalda  v.  S.  P.  Mines,   116. 
Van  Buren  v.  McKinley,  185. 
Van  Doren  v.  Plested,  47. 
Van    Sice  v.   Ibex   Co.,    68,    200, 

207,  214. 

Van  Valkenburg  v.  Huff,  164. 
Van    Zandt     v.    Argentine    Co., 

68,  155,  168,  172. 
Vance  v.  Burbank,  82. 
Veronda  v.  Dowdy,   67. 
Victor  A.  Johnson,  35. 
Vietti  v.  Nesbitt,   58,   61,   87. 


Vogel  v.  Warsing,  71,  149,  151. 

Wagner  v.   Baird,   78. 

•  v.  Dorris,    195. 

— •  v.  Mallory,   122. 
Wailes  v.  Davies,  185,  190,  194, 

197,   199. 

Walker  v.  Bruce,  58. 
Walrath  v.  Champion  Co.,  168, 

177. 
Walton  v.  Wild  Goose  Co.,  154, 

164,   174,  185,  186,   197. 
Ward  v.  Eastwood,  99. 

v.    Sherman,    78. 

Warnekros  v.  Cowan,  10. 
Warnock  v.  DeWitt,   179. 
Washburn  v.  Inter  Mt.  Co.,   95. 
Washington  Co.  v.  O'Laughlin, 

178,  190. 

v.  Osborn,  46. 

Washoe  Co.  v.  Junila,  181. 
Waskey   v.   Hammer,    154,    165, 

174. 

v.  M'Naught,   19,  85,  99. 

Waterhouse  v.  Scott,  20,  215, 
Waterloo  Co.  v.  Doe,  5f>,  68,  110, 

154,  155,  157,  207. 
Waterman  v.  Banks,  66. 
Watervale  Co.  v.  Leach,   50. 
Watson  v.  Lederer,  101. 

v.  Mayberry  155. 

W.  B.  Frue,   214. 

Webb   v.   American   Co.,   47,    96, 

99,  119,  120. 

v.  Carlon,  186. 

Webber  v.  Clarke,  71. 

Weed  v.  Snook,  20,  96,  120,  178, 

180. 

Weill  v.  Lucerne  Co.,  67. 
Welland  v.  Williams,  59. 
Wells  v.  Davis,  185. 

v.  Mantes,  143. 

Wemple  v.  Yosemite  Co.,  96. 
Wesse  v.  Barker,  43,  172. 
Wessels  v.  Colebank,  62. 
W.   Granite  Co.  v.   Granite  Mt. 

Co.,  177. 

West  Pratt  Co.  v.  Dorman,  67. 
Westerman  v.  Dinsmore,  61,  78. 
Western  Coal  Co.  v.  Ingraham, 

80. 
Westmoreland    Co.    v.    DeWitt. 

47,   121. 

Wetzstein  v.  Largey,  59,  68. 
Weyerhaeuser  v.  Hoyt,  29. 
Whalen  Co.  v.  Whalen,  73,  194, 

195,  196,  197,  199. 
Wheeler  v.  Dunn,   83. 

v.  Smith,   20,   45. 

v.  West,   62. 


486 


TABLE  OF  CASES  CITED. 


(The  references  are  to  the  sections.) 


Whipple  v.   Hutchinson,   85. 
Whitcomb  v.  White,   23. 
Whitehead  v.  Shattuck,  12. 
Whiting     v.    Straup,     119,     120, 

154,  158,  164,  194. 
Whitman   v.   Haltenhoff,   215. 
Wholey  v.  Cavanaugh,   67. 
Wight  v.    Dubois,    24,   214,   215. 
Wiley  v.  Helen,  83. 
Wilhelm    v.    Silvester,    50,    182. 
Wilkinson   v.  N.   P.   R.   Co.,   46. 
Willeford  v.  Bell,  154,   186. 
Willey  v.  Decker,  143. 
Wm.  Rablin,   124. 
Wm.  A.  Cheesman,   172. 
Wm.  F.  Roedde,  35,  37. 
Williams  v.  Eldora  Co.,  79. 

v.  Gaylord,    67. 

v.  Haile  Co.,  144. 

v.  Long,    66,    85. 

•  v.  Mountaineer    Co.,    79. 

v.  Sta.  Clara  Ass'n,  102. 

v.  So.   Penn.  Co.,   67,   99. 

v.Toledo  Co.,  101. 

Willett  v.  Baker,  20. 
Wills  v.  Blain,  188. 
Willson  v.  Cleaveland,  72. 
Wilson     v.     Freeman,     20,     178, 

180,  187,  216. 

v.   Triumph  Co.,   163,   185. 

Wiltsee  v.  King  Co.,  178,  185. 
Winscott  v.  N.   P.  R.  Co.,   35. 
Winter  v.  Bostwick,  83. 
Winter  Lode,  155. 
Winters  v.  Bliss,   26. 

v.   Stock,    67. 

Witcher  v.  Conklin,  67. 
Witherspoon   v.   Duncan,    93. 
Wolfe  v.   Childs,   59. 
Wolfley  v.  Lebanon,  212. 
Wolfskill  v.  Smith,  72,  141,  144. 


Wolverton    v.    Nichols,    20,    71, 

216. 

Wood  Placer  Co.,  154,  194. 
Woodenware   Co.   y.   U.   S.,    134. 
Woodman  v.  McGilvary,   214. 
Woodruff  v.   N.  Bloomfield  Co.. 

1,  19,  77,  123,  127,  144. 
Woods  v.   Holden,   50,   206,   215. 
Woodside   v.    Ciceroni,    67. 
Woody  v.   Bernard,   1,   195. 

v.   Hines,    20. 

Worthen  v.  Sidway,  72,   177. 
Wright  v.  Killian,  172,  194,  195. 

.  v.Lyons,   168,   185. 

-v.  Town,   136,   215,   216. 

Wyatt  v.  Larimer  Co.,   141. 
Wynn  v.  Garland,  62. 

Yankee  Lode,  179,  212. 
Yankee  Mill-site.    116. 
Yard   v.   Cook,    24. 
Yarwood  v.  Johnson,  59,  199. 
Yates  v.  Milwaukee,    121. 
Yellow   Poplar   Co.   v.    Thomp- 
son,   67. 
Young  v.   Forest  Co.,   122. 

-v.  Goldsteen,  136. 

Yreka  Co.  v.   Knight,   177,   194. 
Yuba  Co.  v.  Cloke,  123,  127. 
Yunker   v.    Nichols,    77. 

Zechendorf  v.    Hutchinson,    67, 

158. 

Zeiger  v.  Dowdy,  45,  177,  188. 
Zelleken  v.  Lynch,   61. 
Zephyr  Claims,   138. 
Zerres   v.   Vanina,   73,    173,   177, 

178,  179,  185,  188,  190,  197. 
Zimmerman  v.  Brunson,  47,  99. 

v.   Funchion,    173,   174. 

Zollars  v.  Evans,  156. 


ADDENDUM 

(RECENT  CASES  AFFECTING  DATA   OF  CERTAIN 
SECTIONS.) 


ADDENDUM 

(Recent  cases  affecting  data  of  certain  sections.) 


§  3.  Alaska.  Section  2324  of  the  Revised  Statutes 
in  relation  to  the  resumption  of  annual  labor  upon  a 
mining  claim  is  not  applicable  to  Alaska.  Such 
work,  in  that  district,  must  be  done  within  the  year ; 
otherwise  the  claim  is  forfeited  and  subject  to  adverse 
location,  notwithstanding  resumption  is  attempted  im- 
mediately after  the  expiration  of  such  year.1 

1.   Thatcher  v.  Brown,   C.  C.  A.   9th  Cir.     Opinion  filed  Oct.   2, 
1911,   (not  yet  published). 

§  19.  Possessory  Actions.  The  plaintiff  may  elect 
whether  an  action  for  trespass  and  appropriation  of 
mineral  shall  be  of  a  local  or  transitory  nature.1 

1.   Pioneer  Mining  Co.   v.   Mitchell,   C.   C.   A.   9th  Cir.     Opinion 
filed  Oct.  2,  1911,   (not  yet  published). 


§  23.     Disposal  of  the  Public  Lands.     One    who 

would  attack  a  patent  or  decision  of  the  land  depart- 
ment for  a  mistake  of  fact  must  plead  and  prove  the 
evidence  before  the  department  from  which  the  mis- 
take resulted,  the  particular  mistake  that  was  made, 
the  way  in  which  it  occurred,  and  the  fact  that,  if 
it  had  not  been  made,  the  decision  would  have  been 
otherwise  and  the  patent  would  not  have  issued  to  the 
patentee,  before  any  court  can  enter  upon  the  con- 
sideration of  the  original  issue  of  fact  determined  by 
the  department.1 

A.     MISTAKE  OF  LAW.    While  decisions  of  the  land 
department  on  matters  of  law  are  not  binding  on  the 


ii  ADDENDUM. 

courts,  they  should  not  be  annulled  unless  they  are 
clearly  erroneous.2 

1.  Ross  v.  Wright,  (Okla.)  116  Pac.  949;  see  §82,  ante. 

2.  Id. 

g  25.  Hearings.  The  mere  fact  that  a  tract  of  land 
adjoins  the  end  of  a  patented  lode  claim  will  not  pre- 
vent its  appropriation  under  the  non-mineral  public 
land  laws.1 

A.  CHARACTER  OF  PROOF.  In  such  a  case  a  higher 
degree  of  proof  is  necessary  to  establish  its  non- 
mineral  character  than  is  ordinarily  required.2 

1.  Anna  Dillon,   40  L.  D.   84. 

2.  Id.;    see  §  26,   ante. 

§  29.  Railroad  Lands.  Mineral  lands  situated 
within  the  limits  of  railroad  grants  are  subject  to  min- 
eral location  up  to  the  time  of  the  issuance  of  the  pat- 
ent to  the  railroad  company.1 

A.  VALIDITY  OF  LOCATION.     The  moment  a  locator 
.has  discovered  a  valuable  mineral  deposit  on  the  land 

and  perfected  his  location  in  accordance  with  law, 
the  power  of  the  United  States  government  to  deprive 
him  of  the  exclusive  right  to  the  possession  and  enjoy- 
ment of  the  located  claim  is  gone ;  the  land  has  be- 
come known  mineral  land  and  is  exempt  from  grant  to 
another.2 

B.  EFFECT  OF  PATENT.     A  patent  of  the  United 
States  cannot,  any  more  than  a  deed  of  an  individual, 
transfer  what  the  grantor  does  not  possess.3 

c.  EXCLUSION  OF  LOCATION.  To  exclude  a  prior 
duly  located  mining  claim,  which  is  subject  to  identifi- 
cation, from  the  operation  of  the  patent,  it  is  not  neces- 
sary that  the  existence  of  the  mining  claim  be  then 
known  to  the  land  department.4 

D.  CHARACTER  OF  RELIEF.  Proceedings  to  deter- 
mine what  lands,  if  any,  covered  by  the  patent,  are  in- 


ADDENDUM.  iii 

eluded  in  the  reserving  clause  of  a  railroad  patent  is 
not  an  action  to  annul  or  avoid  a  patent  issued  by  the 
government  of  the  United  States.  The  effect  of  grant- 
ing such  relief  does  not  in  any  way  invalidate  the 
patent  in  question.5 

E.  PROOF.    Where  a  patent  to  a  railroad  company 
is  issued  subsequent  to  the  location  of  a  mining  claim 
that  is  within  the  area  described  in  the  patent,  the 
mineral  claimant  may  prove  that  the  demanded  prem- 
ises were  mineral  lands.     Such  a  patent  grants  only 
lands  which    are    non-mineral    in    character  and  the 
exception  of  mineral  lands  in  the  patent  is  part  of  the 
description  and  equivalent  to  an  exception  therefrom 
of  all  lands  that  were  mineral.6 

F.  STATUTE  OF  LIMITATIONS.    Such  an  action  is  not 
within  the  statute  of  limitations  provided  for  under 
the  act  of  1896.     (29  Stats.  42.) T 

G.  JUNIOR  LOCATOR.    Land  patented  as  agricultural 
is  conclusive  as  against  a  junior  locator.8 

H.    SENIOR  LOCATOR.    But  a  prior  locator  may  main- 
tain suit  to  quiet  title  against  a  railroad  patentee.9 

1.  Van  Ness  v.  Rooney,  (Cal.)  116  Pac.  394;    see  §46,  ante. 

2.  Van  Ness  v.  Rooney,  ante;  see  §§  46,  162-168,  ante.. 

3.  Van  Ness  v.  Rooney,  ante;  see  §  206,  ante. 

4.  Van  Ness  v.  Rooney,  ante;  see  §  37-3,  ante. 

5.  Van  Ness  v.  Rooney,  ante;  see  §  82-5,  ante. 

6.  Van  Ness  v.  Rooney,  ante;  see  §  84-26,  ante. 

7.  Van  Ness  v.  Rooney,  ante;  see  §§  46-82,  ante. 

8.  Van  Ness  v.  Rooney,  ante;  see  §  23-2-3-4,  ante   (pp.  37-38). 

9.  Id.;  see  §  19    ante. 


§  40.  Surveys.  There  have  been  but  few  cases  con- 
sidered by  the  courts  involving  the  question  of  the 
power  of  the  court  to  make  an  order  for  a  survey  of  a 
mine  prior  to  the  institution  of  suit.  It  is  conceded 
that,  in  the  absence  of  statutory  authority,  such  an 
order  may  be  made.  But  where  a  statute  providing 
for  such  survev  does  not  authorize  an  order  of  survev 


iv  ADDENDUM. 

except    in     a  pending   suit,  it    follows   that    such    an 
order  would  be  an  excess  of  jurisdiction  and  void.1 

1.  National  Mines  Co.  v.  Court,   (Nev.)   116  Pac.  996. 

§  47.  Mineral  Deposits.  Deposits  of  slate  which 
do  not  carry  deposits  of  any  other  valuable  mineral, 
and  are  found  in  quantity  and  quality  sufficient  to  ren- 
der the  land  more  valuable  on  that  account  than  for 
agricultural  purposes,  are  subject  to  appropriation 
under  the  placer  mining  laws.1 

1.   Roy  McDonald,  40  L..  D.  7;  see  §  45-3,  ante;  §  96-4,  ante. 

§  57.  Grubstake.  Where  a  prospector  enters  into 
a  fraudulent  conspiracy  with  third  parties,  refrains 
from  doing  those  acts  required  by  law  to  perfect  the 
location,  which  he  would  otherwise  have  performed, 
and  permits  the  claim  to  pass  to  his  co-conspirators, 
the  latter  will  be  held  to  be  trustees  for  the  outfitter.1 

1.  Lockhart  v.  Washington  Co.,  (N.  M.)  117  Pac.  833.  See 
this  case  for  form  of  complaint,  findings  of  fact  and 
conclusions  of  law,  and  of  decree. 

§  58.  Mining  Partnerships.  By  cessation  of  work 
without  Agreement  for  resumption,  a  mining  partner- 
ship is  thereupon  dissolved,  and  thereafter  the  part- 
ners are  merely  tenants  in  common  and  as  such  have 
no  power  to  bind  each  other  by  contract.1 

A.  ABANDONMENT  ESSENTIAL.     But  there  must  be 
an  abandonment  of  work  before  it  can  be  said  that  the 
partnership  is  at  an  end.2 

B.  No  DISSOLUTION.    If  there  be  an  understanding, 
express  or  implied,  to  resume  work  at  a  later  date,  the 
mere  cessation  of  labor  would  not  result  as  a  dissolu- 
tion,3 

1.  Nielson  v.  Gross,  13  Cal.  A.  Dec.  279. 

2.  Id. 

3.  Id. 


ADDENDUM.  V 

§  59.  Co-tenants.  A  conveyance  of  a  mining 
claim  to  partners  in  designated  undivided  propor- 
tions is  not  a  conveyance  to  the  partnership,  but  to 
the  partners  as  tenants  in  common.1 

A.  NOT  NECESSARILY  PARTNERSHIP  PROPERTY.  Prop- 
erty may  be  used  for  partnership  purposes  and  not 
belong  to  the  partnership.    It  may  belong  to  a  third 
person,  to  one  of  the  partners,  or  to  the  partners  as 
tenants  in  common.2 

B.  ACCOUNTING.     Where  a  tenant  in^  common  re- 
ceives rent  or  royalty  under  a  lease  of  the  common 
property,  made  by  him  to  a  third  party,  he  is  sub- 
ject to  an  accounting  for  only  the  amount  thereof 
which  has  been  received  by  him  beyond  his  propor- 
tionate share.3 

1.  Grant  v.  Bannister,  42  Cal.  Deo.  387 

2.  Id. 

3.  Cascaden  v.  Dunbar,  C.  C.  A.  9th  Cir.     Opinion  filed  Oct.  2, 

1911,    (not  yet  published). 

§  61.  Mining  Leases  and  Licenses.  Where  the 
lessees  of  a  mining  claim  are  enjoined  by  the  lessors 
from  doing  the  agreed  assessment  work  upon  the  claim 
and  from  working  a  valuable  portion  thereof  until 
final  hearing,  the  lessors  cannot  enforce  forfeiture.1 

1.   Rogers  v.  Halla,  187  Fed.  778. 

§  67.  Deeds.  Contracts  excepting  ores  and  min- 
erals from  grants  of  land,  with  a  reservation  of  the 
right  to  enter  upon  the  portion  thereof  granted,  are  in 
accordance  with  long-established  usage  and  have  been 
invariably  held  by  the  courts  to  be  valid;  hence  they 
are  not  contrary  to,  but  in  harmony  with,  public 
policy.1 

A.  SEVERANCE  OF  RIGHTS.  A  possession  of  the  sur- 
face of  land,  exercised  for  agricultural  purposes  only, 
although  taken  and  held  under  an  ordinary  deed  pur- 


vi  ADDENDUM. 

porting  to  transfer  the  complete  ownership,  is  not  ad- 
verse as  to  mining  rights  previously  severed  by  a 
reservation  in  a  conveyance  in  the  same  chain  of  title.2 

1.  Buck   v.   Walker,    (Minn.)    132   N.   W.    205. 

2.  Crowe  Co.  v.   Atkinson,   (Kan.)    115  Pac.   499. 

§  68.     Examination  of  Title.     See  §  82,  post. 

§  72.  Abandonment.  In  a  contest  between  ad- 
verse mineral  claimants  proof  of  a  subsisting  adverse 
location  prior  to  that  of  either  contestant  rests  upon 
the  one  alleging  its  existence.1 

A.  PRESUMPTION.  Upon  proof  of  a  valid  prior 
location  a  prima  facie  presumption  arises  that  the 
claim  still  subsists  and  had  not  been  abandoned, 
although  the  testimony  produced  tends  to  show  that 
there  .were  no  posts  nor  marks  upon  the  ground  to 
indicate  that  a  prior  location  had  been  made.2 

1.  Willison  v.  Ringwood,  C.  C.  A.  9th  Cir.     Opinion  filed  Oct. 

2,  1911,   (not  yet  published). 

2.  Id.      See    Temescal    v.    Salcido,    137    Cal.    211;    Daggett    v. 

Yreka  Co.,   149  Cal.   357. 

§  82.  Patent.  Where,  through  the  mistake  of  the 
land  department,  land  is  patented  to  a  subsequent 
applicant,  suit  may  be  brought  either  by  the  United 
States  to  set  aside  the  patent,  or  by  the  prior  claim- 
ant, to  cause  the  title  to  such  land  to  be  held  in  trust 
for  him,  by  such  patentee.1 

A.  LACHES.     Laches  does  not  apply  to  the  United 
States.^ 

B.  EFFECT  OF  RECORD.     Mere   reliance  upon  the 
record  of  the  patent,  under  a  state  recordation  law,-'5 
will  not  protect  a  purchaser  thereunder,  as  inquiry 
at  the  local  land  office  would  disclose  the  fact  that 
such  patentee  was  not  entitled  to  the  land  as  against 
the  first  applicant.4 

1.  U.  S.  v.  Wesely,  189  Fed.  276. 

2.  Id. 

3.  See  C.  C.  §§  1160,  1213. 

4.  U.  S.  v.  Wesely,  ante. 


ADDENDUM.  vii 

§  93.  Entry.  The  right  to  a  return  of  the  fee  paid 
under  the  Stone  and  Timber  Act  may  be  forfeited 
through  the  fault  of  the  applicant.1 

1.  Instructions,    40   L.   D.    131;    see   Flossie   Freeman,    40   L.   D. 
106;   see  §  125-6,   ante. 

§  108.  Coal  Lands.  The  method  of  acquiring  land 
under  the  Coal  Land  Acts  is  analogous  to  that  of  the 
Timber  and  Stone  Acts,  and  not  that  of  Homestead 
and  Pre-emption  Acts.  Each  of  the  spouses,  exclusive 
of  the  other,  can,  during  the  marital  relation,  make  an 
entry  and  acquire  title  either  under  the  Coal  Land  Act 
or  Timber  and  Stone  Act.1 

1.   Guye  v.  Guye,    (Wash.)    115   Pac.   73. 

§  120.  Placer  Claims.  Mere  paper  locations,  under 
the  placer  laws,  of  lands  upon  which  no  discovery  of 
oil  has  been  made  and  upon  which  the  mineral  claim- 
ants are  not  prosecuting  with  diligence  the  wrork  of 
making  a  discovery  of  oil,  do  not  prevent  appropria- 
tion of  the  land  by  location  of  "soldiers'  additional 
rights."  ! 

A.  EQUITABLE  TITLE.     Equitable  title  under  "sol- 
diers' additional  applications"  covered  by  such  paper 
locations  vests  when  the  applicants  thereunder  have 
done  all  that  they  are  required  to  do,  unless  the  lands 
are  at  the  time  known  to  be  oil  lands.2 

B.  CHARACTER  OF  LAND.    In  determining  the  oil  or 
non-oil  character  of  the  lands  covered  by  the  "soldiers' 
additional  applications,"  evidence  as  to  the  discovery 
and  development  of  oil  in  adjacent  lands,  and  as  to 
their  geological  formation,  and  the  relation  of  the  land 
in  question  to  known  oil  fields,  will  be  admissible.3 

1.  Skinner  v.   Fisher,   40   L.   D.   112;   citing  with  approval  and 

following  McLemore  v.   Express  Oil  Company,   158   Cal. 
559. 

2.  Skinner  v.  Fisher,  ante;  see  §  106,  ante. 

3.  Id. 


viii  ADDENDUM. 

S 125.  Stone  Claims.  Land  acquired  under  the 
Timber  and  Stone  Act  from  the  United  States  by 
either  spouse  during  the  marital  relation  is  separate 
property.1 

A.  PERSONAL  INSPECTION.     The  regulation  of  the 
land  department  that  the  preliminary  affidavit  of  an 
applicant  to  purchase  under  the  Timber  and  Stone 
Act  must  be  based  upon  personal  inspection  of  the 
land  is  a  proper  and  reasonable  requirement  under 
the  Act,  and  a  failure  to  comply  therewith  is  sufficient 
ground  for  cancellation  of  the  entry.2 

B.  BONA  FIDE  PURCHASER.    A  purchaser  after  final 
entry  and  before  patent  from  an  entryman  who  failed 
to  make  such  personal  examination,  takes,  subject  to 
such  defect,,  and  is  not  entitled  to  special  consideration 
as  an  innocent  purchaser.3 

1.  Guye  v.  Guye,    (Wash.)    115  Pac.   73. 

2.  Frank  L.  Chambers,   40  L.  D.  85. 

3.  Id. 

§141.  Water  Rights  (note  3).  An  Act  substan- 
tially similar  to  the  Act  of  1911,  (Cal.  Stats.  1911,  p. 
271),  which  prohibits  the  transportation  or  carrying 
of  certain  waters  from  California  into  any  other  state 
for  use  therein,  was  previously  enacted  in  New  Jersey, 
(Laws  1905,  c.  238,  p.  461),  and  formed  the  subject 
for  decision  in  the  case  of  Hudson  Water  Co.  v.  Mc- 
Carter,  209  U.  S.  349.  See  s.  c.,  70  N.  J.  Eq.  695. 
The  constitutionality  of  the  latter  act  was  upheld 
and  the  claim  of  its  violation  of  the  Interstate  Com- 
merce Act  was  therein  denied. 

§  142.  Rights  of  Way.  No  company  will  be  recog- 
nized by  the  land  department  as  a  beneficiary  under 
the  provisions  of  the  Act  of  March  3,  1891,  granting 
rights  of  way  over  the  public  lands  and  reservations 
to  Canal  and  Ditch  Companies  organized  for  the  pur- 


ADDENDUM.  ix 

pose  of  irrigation,  until  the  formal  presentation  of  an 
application  for  a  specific  right  of  way.1 

A.  WHAT  SHOWING  MUST  BE  MADE.  An  application 
for  right  of  way  by  a  company  claiming  to  own  ex- 
isting rights  of  way  must  be  accompanied  by  a  showing 
of  the  uses  made  of  such  rights  of  way,  and  those 
intended  to  be  made  of  the  additional  right  of  way 
applied  for,  sufficient  to  enable  the  land  department 
to  determine  whether  the  purposes  of  the  company  are 
properly  within  the  intendment  of  the  Act  of  March 
3,  1891.  as  amended  by  the'Act  of  May  11,  1898.  (30 
Stats.  404.  )2 

1.  Pacific  Gas  and  Electric  Co.,  40  L.  D.  125;  see  §77-3 

2.  Id. 

§  165.  Who  Cannot  be  Locators.  A  deputy  min- 
eral surveyor  cannot  own  shares  in  the  capital  stock 
of  a  corporation,  nor  act  as  its  agent  in  the  sale  of 
town  lots  included  within  the  area  of  an  unpatented 
location  and  claimed  by  such  corporation.  He  must 
either  divest  himself  of  such  interest  in  or  connection 
therewith  or  become  liable  to  the  revocation  of  his 
appointment  as  such  official.1 

1.   Chas.  F.  Saunders,  40  L.  D.  217. 

§  178.  Subsequent  Locations.  A  placer  location 
for  20  acres  cannot  by  means  of  an  amended  or  sup- 
plemental location  be  enlarged  to  cover  40  acres,  as 
such  amendment  would  constitute  in  effect  a  new 
location.1 

1.  Charles  H.  Head,  40  L.  D.  135. 

§  181.    Lode  Location  within  Placer  Claim.     In 

order  to  exclude  a  lode  from  a  placer  claim,  the  lode 
must  have  been  known  at  the  time  the  application 
for  placer  patent  was  made;  but  actual  knowledge  on 


x  ADDENDUM. 

the  part  of  the  placer  applicant  is  not  absolutely  es- 
sential.1 

A.  UNION  OF  RIGHTS.  The  same  person  may  prop- 
erly, claim  the  same  land  under  both  a  placer  patent 
and  a  lode  location.2 

1.  Washoe  Co.  v.  Junila,   (Mont.)   115  Pac.  917. 

2.  Id. 

§  194.  Annual  Expenditure.  Expenditures  on  a 
tunnel  under  §  2323,  Revised  Statutes,  may  be  credited 
toward  meeting  the  requirements  of  the  statute  with 
respect  to  expenditures  as  to  all  existing  claims  in 
fact  benefited  thereby,  if  the  prerequisite  conditions 
of  contiguity  and  community  of  interest  are  present.1 

1.   William  Dawson.  40  L.  D.   17;  see  §  138,  ante. 

§  211.  Patent  Proceedings.  As  a  general  rule, 
final  certificate  and  patent  for  a  mining  claim  now 
issues  to  the  applicant  in  whose  name  the  patent  pro- 
ceedings were  initiated  and  prosecuted.  In  the  event 
of  his  death,  certificate  and  patent  now  issues  in  his 
name,  and  not  to  his  heirs  or  devisees.1 

1.   F.  M.   Graham,    40   L.   D.   128,   overruling  Tripp   v.   Dunphy, 
28  L.  D.  14. 

§  212.  The  Survey.  Under  a  recent  regulation  x 
the  original  plat  of  survey  is  forwarded  by  the  sur- 
veyor-general to  the  General  Land  Office.  The  Com- 
missioner causes  three  photolithographic  copies  to  be 
made  and  sent  to  the  former  officer.  He  signs  such 
copies  and  the  four  plats  are  filed  and  disposed  of  in 
the  manner  provided  for  by  paragraph  34  of  the  Min- 
ing Regulations.  Additional  copies  may  be  obtained 
from  the  surveyor-general  for  30  cents  each,  or  blue 
prints  may  be  obtained  from  him  at  cost. 

A.  An  expenditure  of  $500  in  labor  or  improve- 
ments, to  be  available  -as  a  basis  for  patent  for  a 


ADDENDUM.  xi 

mining  claim,  must  have  been  made  upon,  or  for  the 
benefit  of  the  location  for  which  patent  is  sought.2 

B.  CONSOLIDATED  PLACER  CLAIM.  Work  performed 
upon  and  for  the  benefit  of  a  20-acre  placer  location 
is  not  available  as  a  patent  expenditure  for  the  benefit 
of  a  maximum  location  of  160  acres  by  eight  persons, 
embracing  the  20-acre  location  and  140  acres  of  addi- 
tional ground.3 

c.  CONTIGUOUS  LODE  LOCATIONS.  Where  a  number 
of  valid  lode  locations,  forming  upon  the  ground  a 
contiguous  group,  are  embraced  in  a  single  applica- 
tion for  patent,  upon  which  due  publication  and  post- 
ing of  notice  has  been  had,  and  the  application  is  re- 
jected as  to  one  of  the  locations  because  of  insufficient 
patent  improvements,  the  remainder  of  the  locations 
within  the  group,  although  not  in  themselves  con- 
tiguous, may  be  patented  in  such  single  entry.4 

D.  PATENTING  PART  OP  GROUP.     The  owner  of  a 
group   of   contiguous  mining   claims   and   of   an   im- 
provement constructed  for  their  common  development 
and  effective  to  that  end,  and  of  sufficient  value  for 
patent  purposes  as  to  the  entire  group,  may,  instead 
of  embracing  all  the  claims  in   one  application  for 
patent,  apply  for  and  obtain  patent  for  a  portion  of 
such  locations  based  upon  their  due  share  or  interest 
in  the  common  improvement.5 

E,  SUBSEQUENT  TRANSFER.    A  subsequent  break  in 
the  common  ownership  by  a  sale  or  other  disposition 
of  one  or  more  of  the  patented  locations,  or  of  any 
interest  therein,  will  constitute  no  bar  to  later  patent 
proceedings  for  the  remaining  locations  of  the  group, 
based  upon  their  due  share  or  interest  in  the  same 
common  improvement.6 

1.  40  L.  D.  216. 

2.  Charles  H.  Head,  40  L.  D.   135;    see  §194-4-5-6,  ante. 

3.  Charles  H.  Head,  ante;  see  §  96-3,  ante;  see  §  119-6,  ante. 

4.  William  Dawson,  40  L.  D.  17. 

5.  Id. 

6.  Id. 


xii  ADDENDUM. 

§  214.  Proceedings  in  the  Local  Land  Office.  In 
the  procedure  under  the  mining  laws  the  "application 
for  patent"  bears  a  close  analogy  to  the  initial  plead- 
ing in  a  judicial  proceeding.1 

A.  NOTICE  OF  APPLICATION.     The    published    and 
posted  notice  of  the  application  is  "process."  2 

B.  AFFIDAVITS  OF  POSTING  AND  PUBLICATION.    The 
affidavit  of  the  posting  of  the  notice  and  plat  upon 
the  claim,  and  proof  of  publication  in  the  newspaper 
and  of  the  continuous  posting  of  the  notice,  corre- 
spond in  legal  effect  to  the  sheriff's  or  marshal's  re- 
turn where  personal  service  has  been  had,  or  to  the 
preliminary  affidavits  and  the  proofs  of  publication, 
etc.,  where  in  appropriate   cases  substituted  service 
has  been  resorted  to.3 

c.  PRACTICE.  A  greater  degree  of  strictness  than 
obtains  in  judicial  proceedings  is  not  required  by  the 
land  department  in  entertaining  and  proceeding  with 
an  application  for  mineral  patent.4 

D.  AMENDED  AFFIDAVITS.     Proof  of  posting  upon 
the  claim  and  the  verification  of  the  application  for 
patent  when  made  before  an  inhibited  official  may  be 
amended  and  filed  as  of  the  proper  date  if  there  is  no 
question  as  to  the  fact  of  notice.5 

E.  NEWSPAPER.     "Where  two  newspapers  are  pub- 
lished practically  the  same  distance  from  a  tract  for 
which  patent  is  sought,  both  having  a  general  circu- 
lation in  the  vicinity  of  the  land,  the  register  may 
designate  either  of  them  for  the  publication  of  the 
notice   of   application   for   patent,   regardless   of   the 
fact  that  the  rates  of  the  paper  so  designated  are  less 
reasonable  than  those  charged    by  the    other  news- 
paper.6 

1.  Stock  Oil  Co.,  40  L.  D.  198.  As  the  land  department  is  a 
special  tribunal  charged  with  the  administration  of 
the  public  land  laws,  exercising  not  only  executive  but 


ADDENDUM.  xiii 

judicial  powers,  an  application  to  obtain  a  patent 
addressed  to  that  tribunal  should  recite  all  facts  nec- 
essary to  show  jurisdiction  in  the  Department  to  con- 
vey the  particular  tract  applied  for  to  the  particular 
individual  applying  for  it.  ...  A  petition  or  applica- 
tion thus  framed  presents  a  foundation  for  such  cor- 
roborative evidence  as  required  by  the  rules.  .  .  .  The 
proceedings  by  which  this  jurisdiction  is  invoked 
should  be  conducted  fairly  on  the  line  of  proceedings 
in  rem  in  courts  of  common  law  or  equity  jurisdiction. 
Lindley  on  Mines  (2nd  ed.),  §  680. 

2.  Stock  Oil  Co.,  ante.     The  proceedings  by  which  the  patent 

for  a  mining  claim  is  obtained  are  essentially  in  rem, 
and  are  binding  upon  all  the  world  so  far  as  any  un- 
presented  adverse  claim  is  concerned."  They  are  judi- 
cial. The  publication  and  posting  of  notice  for  patent 
is  a  process  which  brings  all  adverse  claimants  into 
court — a  summons  to  all  persons  whose  interests  may 
be  affected  by  the  issuance  of  a  patent  to  the  tract 
applied  for,  to  appear  and  file  their  adverse  claims. 
Lindley  on  Mines  (2nd  ed.),  §  713. 

3.  Stock  Oil  Co.,  ante. 

4.  Id. 

5.  Id.     El  Paso  Brick  Co.,  37  L..  D.  155,  overruled,  in  so  far  as 

in  conflict. 

6.  Thomas  M.  Trippe,  40  L,.  D.  190. 


§  214.    Proceedings  in  the  Local  Land  Office,  (note 

1).  Paragraph  44  of  the  Mining  Regulations  has 
been  amended  so  as  to  read  as  follows :  "Before  ap- 
proving for  publication  any  notice  of  an  application 
for  mineral  patent,  local  officers  will  be  particular  to 
see  that  it  includes  no  land  which  is  embraced  in  a 
prior  or  pending  application  for  patent  or  entry,  or 
for  any  land  embraced  in  a  railroad  selection,  or  for 
which  publication  is  pending  or  has  been  made  by  any 
other  claimants,  and  if,  in  their  opinion,  after  inves- 
tigation, it  should  appear  that  notice  of  a  mineral 
application  should  not,  for  this  or  other  reasons,  be 
approved  for  publication,  they  should  formally  reject 
the  same,  giving  the  reasons  therefor  and  allowr  the 
applicant  30  days  for  appeal  to  this  office  under  the 
rules  of  practice."  x 

1.    40  L.  D.  222. 


xiv  ADDENDUM. 

§  214.  Re-hearing  (note  50).  Rule  83  of  the  new 
Rules  of  Practice,  (39  L.  D.  395),  providing  for  mo- 
t  ions  for  re-hearing  in  lieu  of  motions  for  review  under 
the  old  rules,  (4  L.  D.  37),  are  administered  as  nearly 
as  possible  in  accordance  with  the  rules  governing  re- 
hearings  in  courts  of  justice,  and  observance  of  its 
provisions  are  insisted  upon  by  the  land  department.1 

1.   William  T.   Schreiner.  40  L.  D.   87. 

S  224.  State  Taxation.  A  proper  method  for  ascer- 
taining the  value  of  a  franchise  of  a  corporation  is  by 
deducting  from  the  aggregate  market  value  of  its 
shares  the  value  of  its  tangible  property,  and  taking 
the  difference  as  the  value  of  the  franchise.1 

A.  MARKET  VALUE.  Market  value  is  synonymous 
with  "value"  and  "full  cash  value"  as  defined  by  §  3716 
of  the  Political  Code.2 

1.  Los  Angeles  v.  Western  Oil  Co.,  42  Cal.  Dec.  538. 

2.  Id. 


